EXPLOITED, UNDERVALUED - AND ESSENTIAL:

DOMESTIC WORKERS AND THE

REALISATION OF THEIR RIGHTS

Darcy du Toit (editor)

Emeritus Professor at the Faculty of Law, University of the Western Cape

2013
Exploited, undervalued – and essential: Domestic workers and the
realisation of their rights

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Cover:
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© 2013
 TABLE OF CONTENTS

INTRODUCTION iv

CONTRIBUTORS vii

1 Situating domestic work in a changing global

labour market
Darcy du Toit
1

2 Advancing domestic workers’ rights in a context

of transformative constitutionalism
Wessel le Roux
31

3 Implementing domestic workers’ labour rights in

a framework of transformative constitutionalism
Darcy du Toit and Elsabé Huysamen
65

4 Implementing domestic workers’ social security

rights in a framework of transformative
constitutionalism
117

Kitty Malherbe

5 Nurturing a culture of compliance with domestic

workers’ rights in South Africa
157

Pamhidzai Bamu

6 Rights across borders: policies, protections and

practices for migrant domestic workers in
South Africa
213

Jennifer N. Fish

7 Organising for empowerment

Nandi Vanqa-Mgijima, Yvette Wiid and Darcy du Toit
265

8 Constructing an integrated model for the regulation 321

and enforcement of domestic workers’ rights
Darcy du Toit

BIBLIOGRAPHY 351

iii
 INTRODUCTION

This book contains the findings of the Domestic Workers Research Project
(DWRP), based on research conducted under the auspices of the Social
Law Project (SLP) at the University of the Western Cape from 2009 to
2012.1

The idea of the project arose in 2008 from a suggestion by Advocate

Roseline Nyman of the Cape Bar, subsequently a member of DWRP’s
Reference Group, that domestic work was an area in need of in-depth
research from the perspective of the implementation of workers’ rights.
This was certainly an exciting if somewhat daunting proposition. The
sector called out for attention not only because of its size, its de facto lack
of regulation and the fact that domestic workers are mainly black women
bearing the brunt of historical disadvantage; it also presents a unique set of
challenges in terms of the conceptual and institutional framework of
labour law. The mismatch between conventional labour law and non-
standard forms of employment in the context of globalised markets
(discussed more fully in the chapters that follow) has long been an area of
debate, research and legislative responses which, by and large, have not
surmounted the problem. In the domestic work sector these questions
present themselves in particularly intractable forms. Any progress towards
developing effective forms of regulation in this sector, it seemed, would not
only improve the lives of domestic workers; it might also provide some
ideas for the development of labour law more generally in responding to
the challenges of informalisation and deregulation across a range of
sectors.

And, at approximately the same time, the Governing Body of the

International Labour Organisation (ILO) was approving a proposal to set
standards on decent work for domestic workers, starting a process that
would lead to the adoption of the ILO’s Domestic Workers Convention2
and its accompanying Recommendation in June 2011.3 DWRP sought to
contribute to this process, inter alia by providing research support to the
South African workers’ and government delegations to the International
Labour Conference in 2010 and 2011, and has joined others in hailing the
Convention as a landmark. But, in itself, the Convention does not answer
the question that motivated this research: how can equal treatment and
decent work for domestic workers be turned into a practical reality? It is for
readers to judge how far DWRP has succeeded in taking the inquiry
forward, not only at the level of knowledge production but in terms of
applied research aimed at finding better ways of dealing with the problems
that have thus far obstructed the implementation of domestic workers’
rights. We ourselves, certainly, are the first to recognise that a great deal
still remains to be done in the area of research as well as advocacy; and, for

1 More information about DWRP can be found on its website at www.dwrp.org.za.

2 Convention 189 concerning decent work for domestic workers, which entered into
force on 5 September 2013.
3 The background to the Convention is described in C Bonner ‘Domestic workers around
the world: Organising for empowerment’ Paper prepared for the SLP Conference
Exploited, undervalued – and essential: The plight of domestic workers http://
www.dwrp.org.za/index.php/2010-conference/conference-papers/article/55-domestic
-workers-around-the-world-organising-for-empowerment (accessed 18 June 2013).

iv
this reason, implementation of workers’ existing rights rather than the
formulation of new rights is being considered as the focus of SLP’s
research in the years ahead.

It remains only to express sincere appreciation to everyone in the

research team and others who contributed so much to the study reflected
in this book. First and foremost these include the authors, whose
particulars are given below, and colleagues who formed part of the
research team at different times. Special mention must be made of Ray
Mungoshi and Jim Mayua, who took part in producing the project’s first
research papers in 2009-2010, Verne Kleinsmidt who contributed to the
chapter on migration, Ernest Booys who assisted with technical editing,
Annalize Swartz who looked after the administration of the project so well
and, above all, Fairuz Mullagee, who not only contributed to the research
but managed the project as a whole with unfailing determination and
without whose input it would not have got as far as it did.

We are grateful also to FNV Mondiaal not only for providing the
funding that made the research possible but also for their collegial advice
and support that helped us to negotiate some of the difficulties that were
encountered along the way. Similarly, we appreciate the support
experienced at all times from the Faculty of Law at UWC and the Dean,
Professor Julia Sloth-Nielsen, whose expectation of high-quality research
was one of the driving forces that helped us to stay focused. In terms of
intellectual stimulation and guidance we were fortunate in engaging with
a great many colleagues, collaborators and partners at an academic as well
as a practical level. Although it is impossible for all to be named, I cannot
omit mentioning Margareet Visser, Jan Theron and Shane Godfrey of the
Institute for Development and Labour Law at the University of Cape
Town and, internationally, Celia Mather, Karin Pape of WIEGO,4 Barbro
Budin of the IUF,5 Claire Hobden of the ILO, Professor Helen Schwenken
of the University of Kassel, Professor Rolf Birk, Director Emeritus of the
Institute of Labour Law and Industrial Relations in the European Union
in Trier, Professor Sarah van Walsum of the University of Amsterdam,
Jenny Moss of Kalayaan,6 Professor Bridget Anderson, Director of the
Centre on Migration, Policy and Society in Oxford, and Emeritus
Professor Manfred Weiss of Goethe University in Frankfurt. The insights
they and others shared with us added much to our understanding, though
any shortcomings are for our own account.

But also at a practical level the knowledge we gained from others was
critical in guiding our research. We are deeply appreciative of the
cooperation offered by the Department of Labour in the Western Cape and
nationally as well as the willingness of the Commission for Conciliation,
Mediation and Arbitration (CCMA) to share information with us. Most
important of all was the relationship that DWRP developed with the South
African Domestic Service and Allied Workers Union (SADSAWU)
during the course of the research and, through SADSAWU, with growing
numbers of domestic workers in Cape Town, Johannesburg and Durban.
Capacity-building was one of the objectives of the project, but what started

4 Women in Informal Employment: Globalizing and Organizing.

5 The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco
and Allied Workers’ Associations.
6 Kalayaan is a London-based organisation that supports migrant domestic workers.

v
as training workshops soon evolved into a two-way dialogue where we
shared our findings with workers and, in turn, took on board the
comments, questions and further information which they had to offer.
Without their input our findings would have been much poorer.

Darcy du Toit
Editor

vi
 CONTRIBUTORS

In order of appearance

Darcy du Toit is an Emeritus Professor at the Faculty of Law,

University of the Western Cape. He obtained his BA LLB at the University
of Cape Town and an LLD at the University of Leiden in 1979. He has
taught, researched and published in most areas of labour law, focusing in
recent years on collective bargaining, discrimination and the regulation of
non-standard work. He is currently the research coordinator of the Social
Law Project at UWC and serves on the Advisory Board of the Institute for
Development and Labour Law at the University of Cape Town, the Board
of Advisors of the European Labour Law Network and the Local
Organising Committee for the 21st World Congress of the International
Society for Labour and Social Security Law, to be held in Cape Town in
2015.

Wessel le Roux is a Professor in Public Law at the University of the

Western Cape where he teaches courses in legal and constitutional
interpretation and immigration law. He obtained his BLC LLB at the
University of Pretoria in 1988 and his LLD from the same University in
2003. Before moving to the Western Cape in 2011, he taught for 12 years
at Unisa where he was the Head of the VerLoren van Themaat Centre for
Public Law Studies. He is married and has three children.

Elsabé Huysamen is an admitted attorney and lecturer in labour and

employment law and alternative dispute resolution at the University of the
Western Cape at both undergraduate and postgraduate level. She obtained
her LLB (2005) and LLM in labour law (cum laude) (2006) from the
University of Stellenbosch. Prior to joining UWC she was employed at an
employment law practice in Cape Town where she facilitated management
training workshops and provided opinions to corporate clients. From 2009
to 2011 she also facilitated training in employment law at the Cape
Chamber of Commerce, was a co-author of Siber Ink’s Labour Law Case
Summaries and a contributor towards the Labour Law for Managers manual.
She has a particular interest in child labour, which also forms the research
area of her doctoral studies.

Kitty Malherbe is an Associate Professor in the Mercantile and Labour

Law Department at the University of the Western Cape. She teaches social
security law and labour law at undergraduate and postgraduate levels. Her
research interests include social security benefits available to older persons
and persons with disabilities, as well as to their caregivers. She is currently
supervising LLM and LLD theses and mini-theses on topics related to
social security law and the extension of social protection to vulnerable
workers.

Pamhidzai Hlezekhaya Bamu was born and raised in Harare,

Zimbabwe. She holds an LLB and an LLM and a PhD in labour law from
the University of Cape Town. She has worked as a teaching assistant and
researcher at the Institute of Development and Labour Law and as a
researcher in the Social Law Project’s Domestic Workers Research Project

vii
at the University of the Western Cape. In addition, she has worked as a
consultant for the International Labour Organisation within the SADC
region. Pamhidzai is currently pursuing a post-doctoral research
fellowship at Stellenbosch University. Her research interests include
precarious employment, labour migration and the informal economy.

Jennifer N. Fish is chair of the Department of Women’s Studies at Old

Dominion University in Virginia, USA. Her research focuses on women’s
labour and migration in the informal economy, social policy protections
and women’s collective mobilisation through civil society organisations.
Over the past 12 years she has worked with the South African Domestic
Service and Allied Workers Union (SADSAWU) to promote workers’
rights. Her book publications include Domestic Democracy: At Home in South
Africa (2006) and the co-edited collection Women’s Activism in South Africa:
Working Across Divides (2009). More recently, Dr. Fish has worked with the
International Domestic Workers Network during the establishment of the
first global policy on domestic workers rights through the International
Labour Organisation. She is a member of the Women in Informal
Employment: Globalizing and Organization (WIEGO) research policy
institute at Harvard University and the Social Law Project at the
University of the Western Cape.

Nandi Vanqa-Mgijima is a gender activist currently working as a

researcher-educator officer for the International Labour Research and
Information Group (ILRIG) in Cape Town, a support service organisation
that works with social and labour movements. Her focus areas are new
empirical material on the working and living conditions of working-class
women, the gendered nature of the labour market, feminisation of labour
and how women are organising differently. Her research interests are
around the areas of women, employment, access to service and organising.
She has registered for an MPhil on organising and empowering domestic
workers.

Yvette Wiid holds an LLB as well as an LLM (cum laude) from the
University of the Western Cape. She is currently a lecturer in the
Mercantile and Labour Law Department at UWC and is in the process of
completing her LLD, which deals with the right of persons with disabilities
to social protection and an adequate standard of living.

viii
 1
CHAPTER
SITUATING DOMESTIC WORK
IN A CHANGING GLOBAL
LABOUR MARKET

Darcy du Toit*

1 Background

In November 2006, at a conference held in Amsterdam under the banner

‘Respect and Rights: Protection for Domestic/Household Workers!’,1 a
campaign was launched to promote the organisation of domestic workers
and advance their interests. From the start it attracted widespread support
internationally, not only from domestic workers’ organisations but also
from trade union federations, non-governmental organisations and
researchers, leading to the adoption of Convention 189 Concerning
Decent Work for Domestic Workers by the International Labour
Organisation (ILO) in June 2011. On 7 June 2013 South Africa became the
eighth country to ratify the Convention, with effect from 20 June 2013.

Much of the response to the campaign was undoubtedly prompted by

the nature of the sector and the conditions prevailing within it. Domestic
workers form a sizeable component of the global labour force. In Uruguay
domestic workers constitute 8.7 per cent of the workforce; in South Africa
6.8 per cent of the employed population are in the domestic work sector.2

* Part 4 of this chapter draws on research done by F Mullagee. Parts 5, 6 and 7 draw on a
paper by D du Toit & E Huysamen ‘When bubbles burst: An analogy for the current
state of the global economy and of labour law?’, presented at the International Labour
Law and Social Protection Conference held at the University of Johannesburg on 27-30
August 2012.
1 The conference was convened by the Dutch trade union federation FNV and the NGO
IRENE, together with an international steering group: http://www.irene-network.nl/
workers_is/domestic.htm (accessed 23 November 2012). The campaign gave rise to
the formation of the International Domestic Workers’ Network in 2009: http://
www.idwn.info/ (accessed 8 November 2012).
2 Statistics South Africa Labour Force Survey 2nd Quarter, April-June 2012. In Argentina
the figure is 7.8%; M Stathakis Comparing the value of domestic work in South Africa and
urban Argentina (2011); ILO Decent work for domestic workers Report IV(1), International
Labour Conference, 99th Session, Geneva (2010) (hereafter ‘the ILO Report’) http://
www.ilo.org/wcmsp5/groups/public/---ed_nor m/---relconf/documents/
meetingdocu ment/wcms_104700.pdf (accessed 27 January 2013).

1
2 Chapter 1

The work they perform, however, tends to be highly individualised and

‘non-standard’3 in nature, making it an extremely difficult sector to
organise or regulate. Employers are thus left with a large measure of
discretion and are in many cases resistant to legal regulation on the basis
that domestic work is not ‘employment’ but, rather, an aspect of private
family arrangements. Given these conditions, the sector is characterised by
disturbing levels of exploitation and abuse which, to many, cried out for
intervention. With growing efforts internationally at extending regulation
to various forms of non-standard work,4 thus, domestic work had come to
represent something of a last frontier on the journey towards the legal
protection of all workers.

However, there are at least two further reasons why the campaign
attracted such widespread support. Domestic workers are overwhelmingly
female5 and exposed to what has been termed ‘triple exploitation’ – that is,
discrimination based on gender as well as class, aggravated by their
generally weak position in the labour market, and, in many cases,
nationality or race. Addressing their situation is thus an important and,
indeed, inescapable challenge in the struggle for gender equality. At the
same time domestic work – including child-care and care for the elderly –
has come to play an increasingly significant role in the global division of
labour. It is, quite simply, too important a sector to be left entirely to the
interests of individual employers.

The adoption of Convention 189, even though its ratification and

implementation by most ILO member states still lies in the future, was a
milestone in that it settled the long-standing debate as to whether domestic
work should be considered as ‘work’ for purposes of labour legislation. It
has made domestic work part of the ILO’s ‘decent work’ agenda6and
thereby transformed the development of an appropriate regulatory
framework for this sector from an aspiration to a practical task.

3 The term ‘non-standard’ is used in its conventional sense as referring to workers who
are not in full-time, indefinite employment and/or not employed in formal workplaces
– including part-time, temporary and agency workers. ‘Non-standard’ workers are also
referred to as ‘atypical’, ‘precarious’ or ‘vulnerable’, depending on the context.
4 See, for example, European legislation such as Directive 2008/104/EC of the
European Parliament and of the Council of 19 November 2008 on temporary agency
work, Council Directive 1999/70/EC of 28 June 1999 on fixed-term work and
Council Directive 97/81/EC of 15 December 1997 on part-time work.
5 In South Africa 97% of domestic employees are women, more than double (43.7%) the
proportion of women in the total labour force: Statistics South Africa (n 2 above).
6 The ILO explains the agenda as follows: ‘Work is central to people’s well-being. In
addition to providing income, work can pave the way for broader social and economic
advancement, strengthening individuals, their families and communities. Such
progress, however, hinges on work that is decent. Decent work sums up the aspirations
of people in their working lives’. See ILO Decent work agenda http://www.ilo.org/
global/about-the-ilo/decent-work-agenda/lang--en/index.htm (accessed 7 November
2012). In Chapter 1 ‘decent work’ is conceptualised as an aspect of the broader goal of
‘social justice’.
 Situating domestic work in a changing global labour market 3

This challenge, and the questions it raises for South Africa in

particular, forms the subject of this study.

2 Scope of the research

We start with a brief overview of the ground covered by this study. The first
point to note is that ‘domestic work’ is by no means uniform; it is
performed under widely diverging conditions. For present purposes it is
especially important to distinguish between domestic workers who are
individually employed and those who are collectively employed. Although
hard numbers are not easily available, it is safe to say that a large majority
of domestic workers in South Africa are employed in private households,
often informally,7 while a minority are employed by temporary
employment services – commonly known as ‘labour brokers’.8 The latter
may be considered small to medium-sized employers of which at least
some are formal enterprises. The regulation of agency work within the
framework of existing labour law is problematic and has been the subject
of extensive debate.9 International experience, however, has shown that it
is not impracticable, and in South Africa a new statute for the regulation
of agency work by conventional means is currently in the process of
enactment.10 This more formal part of the sector will be referred to where
relevant, particularly in the context of organisation. Most of what has been
said in typifying the nature of domestic work, however, applies to the
situation of workers employed by private householders. The focus of the
chapters that follow is accordingly on the situation of individual
employees, since it is this part of the sector that raises the greatest
regulatory challenges.

Against this background Chapter 2 analyses the framework for labour

market regulation created by South Africa’s international law obligations
and its Constitution11 – a constitution which has been described as
‘transformative’ in that it not only regulates the exercise of state power but
mandates state intervention and social change to the extent required in
giving effect to the Bill of Rights.12 Chapter 3 examines the way in which

7 Statistics South Africa uses the term ‘informal employment’ as including ‘persons
working in private households who do not have a written contract of employment, and
whose employers do not contribute to a medical aid plan or a pension on their behalf ’:
Quarterly Labour Force Survey Additional aspects of the labour market in South Africa:
Informal employment; Underemployment and underutilised labour; Unemployment (25
November 2008). See also T Cohen & L Moodley ‘Achieving “decent work” in South
Africa?’ (2012) Potchefstroom Electronic Law Journal 320 321–322.
8 The former are hereafter referred to as ‘individual’ employees. Domestic workers
employed by temporary employment services are referred to as ‘agency’ employees.
9 Manifested, in particular, in the trade union demand that labour broking be prohibited.
These debates fall beyond the scope of the present study.
10 The Employment Services Bill of 2012 (Government Gazette No 35844, 2 November
2012) is expected to be enacted during 2013. Clauses 48-52 deal with enforcement.
11 Constitution of the Republic of South Africa, 1996.
12 Chap II of the Constitution.
4 Chapter 1

the basic labour rights contained in the Constitution13 have been

implemented by South Africa’s labour statutes and, more specifically, the
degree to which domestic workers’ basic labour rights are given legislative
effect. Chapter 4 conducts a similar inquiry in respect of domestic workers’
right to social security14 and social protection. These rights, together with
labour rights, are singled out because of their importance in a sector where
employment is highly precarious and employees are poorly paid.
Chapter 5 concludes the analysis of domestic workers’ statutory rights by
considering the extent to which these rights are implemented in practice,
the appropriateness of the various statutory enforcement mechanisms in a
sector such as this and the challenge of developing a culture of compliance
within it.

All four the above-mentioned chapters furthermore measure the

relevant legal provisions against the standards set by ILO Convention 189
in order to establish the extent to which South Africa’s existing legal
framework complies with the Convention.

Chapter 6 then turns to an issue of broader international significance

which also plays a major role in the present context: the migration of
domestic workers from other parts of Africa. The chapter focuses
particularly on the nature of the immigration law regime, the vulnerable
position of non-South African workers and the scope for constructing a
more rational framework for regulating the international movement of
workers. Finally, Chapter 7 lifts out a theme which runs like a red thread
through the preceding chapters: the organisation of domestic workers
(including migrant workers), the limitations of the standard model of
industrial trade unionism in this sector, criteria for the sustainable
organisation of domestic workers, and the role of such organisation in
driving legal transformation as well as the empowerment of domestic
workers.

Each chapter proposes legal or policy changes based on the analysis

contained in the chapter for addressing the problems that have been
identified. In conclusion, Chapter 8 seeks to draw together these
suggestions into an integrated understanding of what may be involved in
bringing the legal framework fully in line with South Africa’s international
law obligations as well as the transformative values of the Constitution.

3 The bigger picture

The full significance of the study, however, can only be appreciated by

locating it within its broader setting: the challenges facing labour market
regulation internationally.

13 Sec 23 of the Constitution.

14 Sec 27(1)(c) of the Constitution.
 Situating domestic work in a changing global labour market 5

There are two main reasons why this is important. First, this research
proceeds from the thesis that domestic work forms an integral part of the
global division of work and cannot be understood outside this framework.
The next part of this chapter lays a basis for this line of inquiry by
considering the social importance – or ‘value’ – of domestic work as a
yardstick for developing an appropriate regulatory framework that will
take cognisance of domestic workers not only as persons possessing basic
human rights but also of their place in the economy.

Secondly, it is argued that the global economy has entered a period of

volatility in which regulation of this sector may take on new significance.
Domestic work has traditionally been seen as an ‘archaic’ segment of the
labour market which needed to be brought within the ambit of regulatory
institutions operating in more ‘modern’ sectors. However, these roles may
be changing.15 On the one hand, traditional regulatory institutions face a
prospect of continuing erosion due, amongst other things, to the on-going
proliferation of ‘non-standard’ forms of work (as discussed in part 5 of this
chapter). At the same time Convention 189 and the campaign
underpinning it represent impetus towards regulation of domestic work by
means of regulatory institutions geared to the conditions of non-standard
work.16 Regulation appropriate to the realities of a transforming labour
market may thus take shape more readily in a sector such as this than in
sectors where the focus remains on defending traditional forms of
regulation. If this is so, the organisation and regulation of the domestic
work sector may set new precedents, not only for other forms of non-
standard work but also for sectors where existing regulatory mechanisms
are in decline.

To sum up: rather than domestic work progressively being drawn into
the ambit of existing regulatory systems, events may be moving in the
opposite direction. In a climate where existing systems are unravelling to
a significant degree, the creation of institutions capable of regulating
domestic work may turn out to be a trend-setting project of importance to
the labour market as a whole. These propositions will be examined more
closely to set the scene for the main body of the discussion.

4 The value of domestic work

Domestic work in South Africa has its roots firmly embedded in a history
of colonial oppression, racial segregation and exclusion of domestic
workers from legal protection. Domestic labour has traditionally been
performed by unskilled, mainly black women for middle class, mainly

15 I am indebted to Prof Sarah van Walsum of the Free University of Amsterdam for
offering this insight during a discussion on 12 July 2012.
16 While this may be equally true of other previously unregulated sectors, the present
discussion is limited to the domestic work sector.
6 Chapter 1

white families. Because black labour was so cheap, the practice was
widespread and even many working class white households could afford
domestic ‘help’. Against this backdrop many domestic workers found
themselves in a position of virtual servitude in the homes of their ‘masters’,
trapped in paternalistic relationships based on the perception that they are
not really ‘employees’. While the legal framework has changed
dramatically since 1994, social attitudes towards domestic work have been
slow in following suit. As a South African business representative
remarked in 2010: ‘We have no interest in the ILO convention for
domestic workers because the domestic work sector has no commercial
value for us’.17 This statement reflects a deep-rooted mind-set which many
are still grappling with, including domestic employers and domestic
workers themselves.

Promoting an agenda of decent work for domestic workers implies a

very different approach. In the first place it signifies an understanding of
domestic work as a form of socially valuable labour, or ‘work’ in a broad
sense, that is fundamentally no different from other forms of such labour.
‘Work’ in this sense is not confined to employment in a formal or
commercial context but extends to all forms of labour contributing to the
economic output of society. The distinction is less important for present
purposes in that the vast majority of domestic workers in South Africa are
active participants in the labour market and are classified as ‘employees’.
Apart from legal categorisation, however, the argument is that domestic
work forms an integral part of overall economic activity and, as such,
possesses ‘commercial’ or economic value in addition to its intrinsic
value.18

This proposition finds points of support in the rich body of scholarship

since the 1950s on the changing nature of work. Ironmonger has identified
a breakthrough in economic theory in the 1960s which challenged the
portrayal of households as places of consumption and leisure only, with
production of goods and services occurring only in business or public
enterprises.19 On the contrary, the argument went, households may be
regarded as a productive sector and household activities as a series of
industries: 20

Household production is the production of goods and services by the members

of a household, for their own consumption, using their own capital and their
own unpaid labour. Goods and services produced by households for their
own use include accommodation, meals, clean clothes, and child care.

17 Informal comment by a member of the South African business delegation, at the 99th
International Labour Conference, Geneva, June 2010.
18 This distinction is returned to below.
19 D Ironmonger ‘Household production and the household economy’ Research Paper,
Department of Economics, University of Melbourne, 2001 6.
20 Ironmonger (n 19 above) 3.
 Situating domestic work in a changing global labour market 7

The analysis thus contradicts the picture of the economy created by

national statistics which ‘continue to exclude the unpaid labour and
economic output contributed by women and men through household
production’.21 Studies have revealed both the massive extent and huge
potential economic value of such production. A survey conducted in
France in 1975, for example, showed that the number of hours spent doing
‘housework’ ranged from an average of 10 hours per week for a man with
employment outside the home to 73 hours per week for a woman with
three children and no outside employment.22 In total this added up to 89
billion hours per year, of which 50 million were worked by women and 39
million by men.23 The estimated economic value of such time, depending
on the method of calculation used, ranged from 32 per cent to 77 per cent
of the existing gross domestic product; had it been taken into account, in
other words, it would have increased GDP by that amount.24

While the inclusion of ‘household production’ in national accounts

remains problematic within the existing ‘systems approach’,25 it clearly
cannot be conceived of as a self-contained economic sphere. Importantly
for present purposes, Ironmonger postulates interaction between the
‘household economy’ and the larger ‘market economy’: 26

The household economy describes the collective economic activities of

households. The rest of the economy can then be called the market economy.
The two major types of inter-economy trade are the sale of labour time by the
household and the sale of household goods and services by the market.

The present argument goes a step further by focusing on domestic work as

an element of the ‘household economy’ and conceptualising it – whether
paid or unpaid – as being internal rather than external to the ‘market
economy’. The reason for this emerges more clearly if domestic work is
located within a ‘value chain’ model.27 ‘Value chain’ is here understood

21 F Soupourmas & D Ironmonger ‘Calculating Australia’s gross household product:

Measuring the economic value of the household economy 1970-2000’ Research Paper,
Department of Economics, University of Melbourne, 2002.
22 A Chadeau & A Fouquet ‘Peut-on mesurer le travail domestique?’ (1981) 136 Economie
et statistique 29.
23 Chadeau & Fouquet (n 22 above) Table 3.
24 Chadeau & Fouquet (n 22 above) Table 9.
25 Cf United Nations A systems approach to national accounts compilation: A technical report
ST/ESA/STAT/SER.F/77, New York (1999) http://unstats.un.org/unsd/
publication/SeriesF/ SeriesF_77E.pdf (accessed 30 January 2013). An alternative
method for measuring national socio-economic well-being is the Human Development
Index associated in particular with the work of economists M ul Haq & A Sen,
published since 1990 annually in the United Nations Human Development Report http:/
/hdr.undp.org/en/reports/ (accessed 30 January 2013).
26 Soupourmas & Ironmonger (n 21 above) 5.
27 The ‘value chain’ or ‘supply chain’ model has its roots in the Tableau économique
published by the French economist Quesnay in 1758 and has been applied in various
ways; for example, the ‘input-output’ model for which Leontieff was awarded the 1973
Nobel Prize in economics: see W Leontief Input-Output Economics (1986). ‘In practical
terms’, Leontieff notes, ‘the economic system to which [input-out analysis] is applied
may be as large as a nation or even the entire world economy, or as small as the
8 Chapter 1

broadly as denoting a series of interlinked activities performed by different

actors in delivering a specific product or service.28 It is thus a useful tool
for identifying elements of the productive process, including ‘work’ other
than formal ‘employment’, that may be less obvious within a conventional
business model. Within this paradigm domestic work may be seen as
‘liberating’ a cohort of domestic employers from domestic duties, thereby
enabling them to pursue economic activities outside the household. To
that extent domestic workers participate in the production of, in
Ironmonger’s terms, the ‘labour time’ sold by the household and, thus,
contribute to the value created as an output of that labour.29

This approach also links up with the challenge, developed by feminist

theorists in particular, to the distinction between ‘productive’ and
‘unproductive’ labour as drawn by ‘more orthodox [Marxist] authors’ who
defend ‘a narrow understanding of capitalist production tied closely to the
industrial paradigm’.30 The ‘merging of reproduction [in the home] and
production’, Weeks argues,

is visible in the ways that commodities continue to replace domestically

produced goods and services and many forms of caring and household labour
are transformed into feminized, racialized, and globalized forms of waged
labour in the service sector.31

Notwithstanding fierce feminist debates during the 1970s, there was

agreement that women’s unpaid labour in the home contributed to
reproducing the labour power required for capitalist production.32 To the
extent that such labour is carried out by domestic workers, it performs the
same function and thus becomes ‘merged’ to a greater or lesser extent with
the productive processes of the capitalist economy.

More research is needed to establish the extent of economic activity

outside the home that is reliant on the input of domestic workers and the
contribution thus made by domestic work to the value so produced. This
is not to discount the significance of forms of domestic work that cannot
be located within value chains. The argument is only that, at a conceptual

27 economy of a metropolitan area or even a single enterprise’: Chadeau & Fouquet (n 22

above) 6.
28 The Value Chain Approach to Poverty Reduction and Development of Livelihoods
http://www.researchintouse.com/nrk/RIUinfo/valuechain/valuechain.htm
(accessed 27 November 2012).
29 In the United States, it has been noted, an estimated 2.5 million women are employed
as domestic workers, making it ‘possible for their employers to go to work every day by
caring for the most precious elements of their employers’ lives: their families and
homes’: Ai-jen Poo ‘Domestic workers Bill of Rights: A feminist approach for a new
economy’ Issue 8.1: Fall 2009 The Scholar and Feminist Online 1 http://
sfonline.barnard.edu/work/poo_01.htm (accessed 27 May 2013).
30 K Weeks ‘Life within and against work: Affective labour, feminist critique, and post-
Fordist politics’ (2007) 7 Ephemera - theory & politics in organization 233 236.
31 Weeks (n 30 above) 238.
32 S Ally From servants to workers: South African domestic workers and the democratic state
(2010) 5.
 Situating domestic work in a changing global labour market 9

level, the economic value of domestic work cannot be confined to the

wages paid for the workers’ services and the purchasing power created as
a result. ‘Decent work for domestic workers’ should likewise be premised
not only on the wage-work bargain in the employer’s household and the
basic rights of domestic workers bound up with that relationship. As this
book will try to show, regulation of the sector driven by the decent work
agenda should take account of the role of domestic workers in its totality,
as ‘industrial citizens’ in the fullest sense of the term.33

It goes without saying that the above discussion is no more than an

introduction to a vast and complex subject, raising questions which can
only be taken further by subject specialists. The central proposition that has
been advanced, however, is one which runs through or finds support in a
number of different discourses: that is, the proposition that domestic work
is integral to the wider economy to which all workers contribute. This
implies, first of all, that domestic workers are not to be seen as mere
appendages of private families and objects of state or private benevolence.
Their rights are built on the same foundations as those of other workers.

But this has implications also at the economic and legal levels. It
means, first of all, that domestic workers are subject as much as other
workers to changes in the global, national or local economy. As noted
above, however, an important difference arises from the fact that domestic
workers are engaged in path-breaking struggles for inclusion in
frameworks of legal protection achieved historically by workers in more
organised sectors. But this comes at a time when those frameworks are
under severe strain due to global economic instability and workers’
organisations in those sectors are engaged in defensive action rather than
seeking to extend their gains. The significance of these dynamics,
discussed in the remainder of this chapter, helps to provide a context for
the study as a whole.

5 Globalisation and its aftermath

Labour law scholarship in recent decades has been deeply concerned with
the impact of ‘globalisation’34 on labour market regulation. At a general

33 The concept of ‘industrial citizenship’, first advanced by Arthurs in 1967, has since
undergone critical and divergent interpretations: see H Arthurs ‘Developing industrial
citizenship: A challenge for Canada’s second century’ (1967) XLV Canadian Bar Review
786; J Fudge ‘After industrial citizenship: Market citizenship or citizenship at work?’
(2005) 60 Relations industrielles/Industrial Relations 631; G Mundlak ‘Industrial
citizenship, social citizenship, corporate citizenship: I just want my wages’ (2007) 8
Theoretical Inquiries in Law 718. While mindful of the critique, the term is used here in
the broadest sense as bound up with the performance of ‘socially necessary labour’,
rather than ‘employment’ in the strict sense, and extending beyond ‘labour rights’ to all
basic rights associated with citizenship.
34 The term is used here as referring in particular to ‘the emergence of a new global division
of labour’ alongside the longer-established patterns of international integration of trade
10 Chapter 1

level there is widespread consensus as to the nature of the problem. Much

of the structure and content of existing labour law35 took shape during the
relatively brief zenith of ‘Fordism’36 in the three decades following World
War II. The end of that era and the advent of globalisation in the 1980s,
however, changed the nature of work irreversibly. The internationalisation
and decentralisation of production driven by new technology, combined
with the proliferation of more flexible, ‘non-standard’ forms of work,
created large areas where existing institutions of labour law became
increasingly ineffective.37

To the extent that such change has been the outcome of economic
development and technological innovation, the transformation brought
about through globalisation may be seen as part of a changing objective
reality that labour law needs to engage with as part of its ongoing
evolution.38 More problematically, the process of adapting the regulatory
framework has been dominated for most of the past two decades by what
was popularly termed a ‘neo-liberal’39 agenda which, in contrast to
widespread consensus on the realities of economic change, has been highly
controversial. Detailed analysis of this process falls beyond the scope of the
present research; its relevance, however, lies in the fact that such policies
have translated, as illustrated below, into measures aimed at achieving
greater flexibility in the labour market through various forms of

34 and investment: see P Dicken Global shift: Reshaping the global economic map in the 21st
century 4 ed (2003) 8–9 (emphasis in the original).
35 In particular, its focus on collective bargaining based on the organisation of workers in
standard employment, as exemplified by South Africa’s Labour Relations Act 66 of
1995 (‘the LRA’); see Chapter 2 below.
36 The term is used in its conventional sense as referring to the socio-economic and
industrial relations based on mass production and mass consumption that dominated
industrialised parts of the world economy from the first half of the 20th century to the
early 1970s, creating favourable conditions for large-scale trade union organisation and
collective bargaining.
37 As Benjamin has noted: ‘[C]hanges in the nature of work have resulted in situations in
which the legal scope of employment relationships does not accord with the realities of
working relationships’: P Benjamin ‘A review of labour markets in South Africa:
Labour market regulation: International and South African perspectives’ Employment
& Economic Policy Research Programme, HSRC, 2005 9. The same, it is suggested,
can be said of regulatory institutions.
38 The literature on these questions is vast. For recent compilations of the thinking of
leading scholars, see S Barnard et al (eds) The Future of Labour Law: Liber amicorum Sir
Bob Hepple QC (2004); JDR Craig & M Lynk (eds) Globalization and the future of labour
law (2006); G Davidoff & B Langille (eds) The idea of labour law (2011).
39 The term is used here to refer to the assumption that policies of market liberalisation,
fiscal discipline, privatisation and deregulation are necessary for economic progress, as
reflected in the so-called ‘Washington Consensus’, a phrase coined in 1989 to describe
policies shared by key financial institutions based in Washington DC, such as the
World Bank and the International Monetary Fund. For a background, see
J Williamson ‘A short history of the Washington Consensus’ Paper commissioned by
Fundación CIDOB for a conference ‘From the Washington Consensus towards a new
global governance,’ Barcelona, 24-25 September 2004 http://www.iie.com/
publications/papers/williamson0904-2.pdf (accessed 23 November 2012).
 Situating domestic work in a changing global labour market 11

deregulation.40 Although these policies have generated intense criticism, it

will be argued that critics have thus far failed to develop viable alternatives.
One consequence has been the dominance of neo-liberal views among
governments of developed and many developing countries. This, in the
eyes of many commentators, has been an additional source if not the
principal source of the difficulties faced by labour law.

In what follows it will be suggested that this long-standing problem, far

from moving towards resolution, has taken a turn for the worse. In
essence, the argument is that the challenges associated with globalisation
have been aggravated by the sequence of events set in motion by the
explosion of the ‘sub-prime’ bubble in the USA in 2007,41 sending shock
waves throughout the financial world and threatening the solvency not
only of banking systems but of governments. Among the after-effects have
been the deepest international recession since 1945, incipient disaster in
the Eurozone countries and an international trend towards austerity
policies aimed at restoring fiscal stability and deflating other debt bubbles
before they burst.42 The ILO sums up the way in which the process has
unfolded:43

The initial shock of the crisis was met by coordinated fiscal and monetary
stimulus, which led to recovery in growth and avoided further contraction and
higher unemployment, but proved insufficient to bring about a sustainable
jobs recovery, most notably in advanced economies.

In the second stage, higher public deficits and sovereign debt problems led to
increased austerity measures in an attempt to bring confidence to capital
markets. As a consequence, fiscal stimuli started to wane, and support of
economic activity in advanced economies concentrated on quantitative easing
monetary policies. The combined impact appears to have been a weakening
of both GDP growth and employment …

The tightening of policies and the persistently high levels of unemployment

have increased the potential for a dangerous third stage, characterized by
increased risk of a second dip in growth and employment in some of the

40 It has been argued that the term ‘deregulation’ is a misnomer, since the ‘neo-liberal’
programme, as illustrated below, essentially calls for different forms of regulation to
remove certain protections enjoyed by workers while providing employers with various
benefits. In the present context it refers specifically to the dismantling of rights
previously enjoyed by workers and trade unions.
41 See A Blundell-Wignall & P Atkinson ‘The sub-prime crisis: Causal distortions and
regulatory reform’ in P Bloxham & C Kent (eds) Lessons from the financial turmoil of 2007
and 2008 (2008) 55 http://www.rba.gov.au/publications/confs/2008/conf-vol-
2008.pdf (accessed 14 June 2012).
42 Various terms, such as ‘crisis’, ‘recession’ and ‘contraction’, have been used to describe
the events of 2008-2009: see, for example, K Rogoff ‘The second great contraction’
Project Syndicate 2 August 2011 http://www.project-syndicate.org/commentary/the-
second-great-contraction (accessed 26 June 2012).
43 ILO Global Employment Trends 2012: Preventing a deeper job crisis (2012) at 11-12. See also
ILO World of Work Report 2012: Better jobs for a better economy (2012) 68.
12 Chapter 1

advanced economies, exacerbating the severe labour market distress that has
emerged since the onset of the crisis.

While in the short term the malaise has been uneven, with southern
European countries being the hardest hit and developing countries not
(yet) affected to the same extent, the prospect of the emergence of a two-
tiered global economy is unlikely. Obvious threats to developing countries
include losses of export markets and reduced investment inflows; less
obvious threats include financial instability playing havoc with exchange
rates.44 As the Nobel Prize-winning economist Stiglitz has cautioned:45

[T]he major emerging-market countries, which steered successfully through

the storms of 2008 and 2009, may not cope as well with the problems looming
on the horizon. Brazil’s growth has already stalled, fuelling anxiety among its
neighbours in Latin America.

It thus seems clear that what the global economy has been experiencing is
no ordinary economic slowdown, soon to be followed by a resumption of
growth as before. Many economists have concluded that the root causes
are structural rather than cyclical in nature: growth in the pre-2007 period,
also known as the ‘Great Moderation’,46 had been buoyed up by an
accumulation of public and private debt that had become unsustainable.47
As a consequence, reduced public spending appears to be on the agenda for
the foreseeable future. More particularly, given that vast amounts have
been devoted to state support for ailing banks and corporations since
2007,48 spending cuts have primarily been aimed at public sector

44 Cf L Donelly ‘Stiglitz: Emerging markets face economic instability’ Mail & Guardian 7
May 2012.
45 JE Stiglitz ‘The perils of 2012’ Project Syndicate 12 January 2012 http://www.project-
syndicate.org/commentary/ the-perils-of-2012 (accessed 9 April 2012).
46 The term refers to the period between the mid-1980s and 2007, when a decline in the
volatility of business cycle fluctuations created perceptions of greater economic
predictability and less aversion to risk, also in the form of greater debt exposure. Real
GDP growth across the global economy averaged between 2% and 5% per year during
the decade 1997-2006: cf M Allen ‘The impact of the global economic crisis on Central
and Eastern Europe’ International Monetary Fund presentation (2011) http://
www.imf.org/external/region/bal/rr/2011/022511.pdf (accessed 12 November
2012).
47 Summed up in the case of Europe as ‘public and private financial overreach’ that went
on for over a decade: C Bruggemans ‘Confidence slipping as world views collide’
(27 June 2012) https://www.fnb.co.za/economics/servlet/Economics?ID=5801
(accessed 28 June 2012). It has been calculated that total outstanding debt in the USA
(public and private) rose from some 270% of GDP in 1999 to 350% in 2011 (after
reaching almost 400% in 2008) and in the Eurozone from 300% of GDP in 1999 to
approximately 450% in 2008, where it has remained ever since: ‘Road back to
prosperity is through shared sacrifice’ Interview with corporate economist Lacy Hunt,
13 February 2012 http://www.ritholtz. com/blog/2012/02/face-the-music/ (accessed
9 April 2012).
48 In the European Union alone, the European Commission estimated that state support
totalling € 3 000 billion had been extended to banks up to the end of March 2009: T
Beck et al ‘Bailing out the banks: Reconciling stability and competition’ Centre for
Economic Policy Research, London, 2010 35-36 http://www.cepr.org/pubs/other/
Bailing_out_the_banks.pdf (accessed 19 June 2012). An ILO/World Bank survey of 77
countries, published in 2012, revealed ‘additional public spending’ in response to the
 Situating domestic work in a changing global labour market 13

employment, social services and welfare.49 Also in the private sector cost
reduction, including the cost of labour, and risk aversion, including risk in
the form of debt as a means of financing investment, have become
watchwords in a climate of sluggish demand and financial volatility.50

Deflating public and private debt, in other words, also has the effect of
deflating growth. As the ILO’s Global Employment Trends report (quoted
above) indicates, ‘increased austerity measures’ have been followed by ‘a
weakening of both GDP growth and employment’. Critics have argued
that continued austerity is a recipe for deepening recession and that debt
reduction ultimately depends on economic growth. As to the means of
achieving growth, however, opinions differ. Some have drawn what may
be termed the Keynesian51 conclusion that growth depends on stimulatory
policies and higher public spending based on increased borrowing and/or
higher taxation.52 Others have declared that higher taxation will
discourage recovery and that public spending cuts (‘austerity’) are essential
to affording debt repayment and restoring fiscal health.53 Yet others, while

48 crisis totalling UD$2,4 trillion, with approximately half going to the banking sector
and the second-largest share of US$240 billion going to the manufacturing sector: ILO
Global Employment Trends 2012 (n 43 above) 19; ILO/World Bank Joint synthesis report:
Inventory of policy responses to the financial and economic crisis (2012) 8 http://
siteresources.worldbank.org/INTLM/Resources/ILO_WB_2012.pdf (accessed 19
June 2012).
49 See ILO Global Employment Trends 2012 (n 43 above); Soupourmas & Ironmonger (n 21
above) 6 Table 1 for an overview of ‘fiscal austerity measures’ in 25 countries, with
reductions in social welfare measures as the largest common denominator.
50 For a pertinent analysis see United Nations Economic Commission for Africa
Economic Report on Africa 2012 especially Chapter 1 http://allafrica.com/download/
resource/main/main/idatcs/00040165:7d94ca94fdef2c203492621c02a3e85a.pdf (ac-
cessed 23 November 2012). Global volatility is accentuated by the marked contrast
between the optimistic tone of projections in the 2011 edition of the Report compared
with the 2012 edition. For a general overview, see Wikipedia ‘2008–2012 global
recession’ http://en.wikipedia.org/wiki/2008%E2%80%932012_global_recession (ac-
cessed 23 November 2012).
51 The reference is to the economic doctrine of JM Keynes, to the effect that the
government has a role in influencing aggregate demand, especially by stimulating it
during times of recession by means of monetary and fiscal measures. Keynes’s classical
book, The general theory of employment, interest and money (1935), is available at http://
www.scribd.com/doc/11392072/The-General-Theory-of-Employment-Interest-and
Money (accessed 23 November 2012).
52 See especially the ongoing critique by JE Stiglitz for example, ‘The perils of 2012’ (n 46
above); ‘The ideological crisis of western capitalism’ Project Syndicate 6 July 2011 http:/
/www.project-syndicate.org/commentary/the-ideological-crisis-of-western-capitalism
(accessed 9 April 2012); ‘Austerity: Europe’s man-made disaster’ Social Europe Journal
8 May 2012 http://www.social-europe.eu/2012/05/austerity-europes-man-made-
disaster/ (accessed 24 May 2012). For the views of another leading proponent of
growth see P Krugman ‘How to end this depression’ The New York Review of Books 24
May 2012 http://www.nybooks.com/articles/archives/2012/may/24/how-end-de
pression/?pagination=false (accessed 5 June 2012).
53 Epitomised by the economist Krugman as ‘slash spending and cut taxes’: P Krugman
‘This Republican Economy’ The New York Times 3 June 2012 http://
www.nytimes.com/2012/06/04/opinion/krugman-this-republican-economy.html?_r
=1 (accessed 12 June 2012). Though defeated in the Presidential election, the
Republican Party retained its majority in Congress.
14 Chapter 1

rejecting austerity policies, have pointed out the unsustainability of

increased borrowing as a means of boosting public spending:54

It is the desperate pursuit of this unattainable goal [of high growth rates]
which has generated the present massive distortions and imbalances in the
economy, particularly the unprecedented burden of unserviceable debt –
private and public – now weighing down the global economy. Even now, amid
the total paralysis induced by this debt, Keynesians insist that an essential
prerequisite of any recovery strategy must be to increase public borrowing still
further, thus digging us into an even deeper hole …

This impasse, it is suggested, indicates that there is no prospect of an early

return to the problematic but relatively predictable global environment that
labour market regulatory institutions have been seeking to come to grips
with over the past twenty years. Rather, there have been widespread
suggestions that a decade or more of instability and austerity may lie ahead
before any new basis for sustainable growth could be brought into
existence, although even this prospect is far from certain.

6 The outlook for labour law

The implications of protracted economic uncertainty for labour law are

deeply unsettling. An ILO publication characterised the outlook at the
start of 2012 as follows:55

This is not a normal employment slowdown. Four years into the global crisis,
labour market imbalances are becoming more structural, and therefore more
difficult to eradicate. Certain groups, such as the long-term unemployed, are
at risk of exclusion from the labour market. This means that they would be
unable to obtain new employment even if there were a strong recovery. In
addition, for a growing proportion of workers who do have a job, employment
has become more unstable or precarious.

This does not bode well for existing institutions of labour market
regulation. Labour law, as Arthurs has put it, ‘takes its purpose, form, and
content from the larger political economy from which it originates and
operates’.56 Does labour law as we know it, shaped by the realities of
Fordism, retain its compatibility with the dynamics of a political economy
transformed by globalisation as it enters an uncertain future?

54 H Shutt ‘Keynes is the problem, not the solution’ Red Pepper 21 August 2012 http://
www.redpepper.org.uk/keynes-is-the-problem-not-the-solution/ (accessed 8 Novem
ber 2012).
55 R Torres ‘How to move out of the austerity trap?’ World of Work Report 2012 (n 43
above) vii-viii.
56 HW Arthurs ‘Labour law after labour’ Osgoode Comparative Research in Law & Political
Economy Research Paper No 15/2011 26 http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=1791868 (accessed 18 June 2012).
 Situating domestic work in a changing global labour market 15

This question refers not only to the institutions (‘form and content’) of
labour law and their technical effectiveness; it is bound up also with its
purpose. All models of labour law developed in democratic societies
during the twentieth century have set out to create some form of
equilibrium between the various imbalances of an unregulated labour
market, usually by extending certain rights to workers and their
organisations to reinforce their bargaining position, improve their terms
and conditions of employment and create job security.57 This purpose, in
turn, has been premised on certain suppositions; in particular, that of
government committed to maintaining the necessary institutional
framework, supplemented by a system of social security to protect those
who cannot work, and, no less importantly, the expectation of relatively
quantifiable economic growth as a basis for maintaining such protection
This purpose is revisited below. For now the question is whether these
suppositions remain sustainable.

This question has been posed most sharply in Western Europe,

historically the cradle of labour and social security law, in the wake of the
financial and fiscal crisis that has placed the European Economic and
Monetary Union under particular strain. Greece, at the time of writing, has
seen the most draconian inroads on worker protection in the form of an
‘Economic Adjustment Plan’ introduced, significantly, by a Socialist
government that might have been expected to adopt a ‘pro-growth’ stance.
An organ of the European Union describes the impact on the collective
bargaining framework as follows:58

The corpus of the legislation for structural reform, in spirit and effect, contests
the very concept of collective bargaining and collective democratic
representation. It downgrades collective negotiations and negates the essence
of trade unionism, rendering trade union organisations potentially useless.
Collective labour agreements currently cover some 75% of workers in the
private sector. They constitute the backbone of labour relations in Greece.
The new laws will ease their annihilation and also lead to the demise of
sectoral unions that are fundamental to the trade union structure in Greece –
and elsewhere.

Nor are the implications limited to Greece; at the time of writing, similar
trends were at different stages in other countries of southern Europe and

57 For a classic exposition of this conception, see O Kahn-Freund On labour and the law
(1977).
58 European Economic and Social Committee Workers’ Group ‘The impact of anti-crisis
measures, and the social and employment situation: Greece’ (undated) 8 http://
www.ictu.ie/download/pdf/greceen.pdf (accessed 9 April 2012). For a summary of
over 100 legislative amendments in 20 months to effect this ‘adjustment’ in Greece,
reducing the ‘social wage’ as well as actual wages, see ibid 5-6; and Associated Press ‘A
look at Greece's new austerity measures’ The Guardian 22 February 2012 http://
www.guardian.co.uk/world/feedarticle/10106906 (accessed 9 April 2012).
16 Chapter 1

elsewhere.59 Even where the pressures are less acute, reduction of public
spending and erosion of labour rights to reduce the cost of labour have
become the norm.60 One commentator summed up the picture as follows:
‘Pressed hard by the recession and national debts, European governments
are rewriting the labour law, whether watering down job protection or
cutting wages. And employers are smiling’.61

Beyond Europe similar patterns are emerging. The ILO reports that
negative changes in employment conditions, including ‘increasing
probationary periods, expanding the grounds for justified dismissal,
reducing severance payments and notice periods and weakening the
remedies in the case of unfair dismissals’, accounted for most of the
amendments to employment legislation between 2008 and March 2012,
not only in the Eurozone countries but also in Central and South-Eastern
Europe, sub-Saharan Africa, Latin America, the Caribbean, the Middle
East and North Africa.62

To many trade unions and labour scholars concerned with the

protection of workers’ rights these developments may present themselves
as a rallying call to defend existing institutions with renewed
determination. The question is whether such a response would amount to
addressing the symptoms rather than the disease – specifically, whether the
preservation of labour rights within the existing institutional framework is
really the central issue, or whether the viability of that framework itself is
in question. If this is so, the true challenge is the construction of a

59 Spain, in particular, was facing a deepening crisis: with unemployment at 23% and
youth unemployment approaching 50%; economic contraction of 1.7% was expected
for 2012 and a further decline of 1.4% for 2013. According to a European Commission
report, greater adjustments will be needed in Spain over the next two years than
Greece has been required to make. For daily commentary, see Evro Intelligence http://
www.eurointelligence.com/eurointelligence-news/home.html (accessed 30 January
2013).
60 The anti-austerity Socialist government elected in France in May 2012, representing a
high point in popular resistance to austerity policies, had by September resorted to
introducing an ‘austerity budget’ in order to address a € 37 billion deficit: ‘Hollande
launches austerity budget’ The Telegraph 28 September 2012 http://www.
telegraph.co.uk/news/worldnews/europe/france/9574067/Hollande-launches-auster
ity-budget.html (accessed 13 November 2012).
61 S Kaufmann ‘The crisis, golden opportunity for employers’ Frankfurter Rundschau 23
March 2012 http://www.presseurop.eu/en/content/article/1678031-crisis-golden-
opportunity-employers (accessed 8 June 2012). The article continues: ‘What’s already
clear is that the labour market reforms are not short-term measures to tackle the crisis,
but are here for the long run … This competition between states is also desired by the
EU, whose goal is to make Europe the most competitive region in the world by 2020’.
62 ILO World of Work Report 2012 (n 43 above) 35. South Africa, with increased protection
of non-standard workers being proposed in the Labour Relations and Basic Conditions
of Employment Amendment Bills of 2012, is going counter to this trend. However,
many of the proposed amendments are controversial and, if enacted, the extent to
which they are implemented remains to be seen. Although the question cannot be
examined here, it presents itself as part of the bigger problem: the practical
effectiveness of laws that are at odds with ‘the larger political economy’.
 Situating domestic work in a changing global labour market 17

regulatory framework more in keeping with a political economy changing

more rapidly than ever.63

The point can be illustrated more concretely by revisiting the

dichotomy between ‘formal’ parts of the economy64 and those termed
‘informal’. The erosion of labour law, by its nature, is essentially confined
to the former. Most workers in the world, including most domestic
workers, have never experienced the protection of labour law to any
meaningful extent and are thus not directly affected by its diminishing
effectiveness in regulated sectors. The worst-case scenarios sketched by
labour law scholars in developed countries have been their abiding reality.

The tension between the ‘form and content’ of labour law and the
overall ‘political economy’ in which it operates thus manifests itself in two
ways: on the one hand, its dwindling role in areas which it traditionally
covered and, on the other hand, its virtual absence in the remainder of the
global economy. The current economic contraction and its political ripple
effects have accelerated processes of informalisation and deregulation in
regulated sectors while, at the same time, practically ruling out any
lingering prospect of the progressive formalisation of informal work,
including domestic work, within the present institutional framework.

Against this background, it is suggested, the challenge is not merely to

resist deregulatory pressures in regulated sectors, important though this
may be in the short term; beyond this looms the larger task of
reconceptualising the ‘purpose, nature and content’, or framework, of
labour law in a way that will be compatible with the unfolding realities of
the global political economy, including its unregulated parts, in the
aftermath of 2007.

7 The purpose of labour law revisited

The purpose of labour law has been understood differently at different

times; or perhaps it is more accurate to say that different purposes have

63 For a thought-provoking resumé of the problem as it presented itself on the eve of the
present crisis, see Craig & Lynk (eds) (n 38 above) Chapter 1. See also B Kaufman
‘Economic analysis of labor markets and labor law: An institutional/industrial
relations perspective’ in M Watcher & C Estlund (eds) Law and economics of labor and
employment law (2012) (forthcoming).
64 The terms ‘formal economy’ and ‘informal economy’, suggesting the existence of two
separate economies, are generally avoided. This research proceeds from the concept of
a single, integrated economy which is unevenly regulated, ranging from parts that are
highly regulated to parts that are virtually unregulated; transitions are manifested in
various forms such as in national and international ‘value chains’. For an application
of this approach, see M von Broembsen ‘People want to work, yet most have to labour:
Towards decent work in South African supply chains’ (2012) 16 Law, Democracy &
Development 1 http://www.ldd.org.za/images/stories/Ready_for_publication/von_
broembsen-new.pdf (accessed 14 November 2012). Domestic work, it has been
suggested above, can only be understood in such a context.
18 Chapter 1

been identified as circumstances changed. Labour law scholarship in

recent years has broadened the focus of labour law to take into account
more thoroughly the complexities of the labour market and the pressures
being exerted on existing structures. An enlightening analysis is that of
Blackett which extends the purpose of labour law beyond the employment
paradigm, beyond creating a balance of bargaining power and beyond the
protection of workers in the workplace.65 Starting from the struggle for the
emancipation of working people from subordination (or ‘commoditi-
zation’ of labour) as a process long preceding the emergence of
employment relations and labour law, she argues that continuation of this
transformative process is the crux of labour law but is, at the same time,
not dependent on its present framework. Rather, she concludes,

[l]abour law resists the commoditization of the factor of production that is

labour; the resistance entails both a protective role for the state but also an
enabling role for actors … The discipline of labour law will remain, not
because we deem it a separate field of study, and not even because the market
needs it, but because people will continue to insist on exercising agency over
the terms under which they exchange their labour power … A project for
labour ‘lawyers’, then, is to decide whether to engage with the transformative
potential of labour law … This may well be a part of the project Polanyi
understood as preventing a market economy from also becoming a market
society. Or it may be as basic as retaining our humanity … 66

To the extent that existing labour law theory proves inadequate to

articulate its transformative agenda, this implies, it will be superseded by
new theory, drawing where necessary on disciplines and discourses
beyond labour law in redefining that agenda more appropriately.

But theory, like law, must be rooted in reality if it is to have practical

value. If the erosion of labour law reflects the political domination of what
has been termed the ‘neo-liberal’ agenda, it is equally a reflection of the
impasse faced by critics of neo-liberalism. Should this state of affairs
continue, it could well mean the withering away of labour law as we know
it and its degeneration, in the words of Hyde, into a mere ‘technical branch
of regulation’67 where human labour power features as a mere

65 A Blackett ‘Emancipation in the idea of labour law’ in Davidoff & Langille (n 38

above).
66 Blackett (n 65 above) 435-436. Polanyi’s argument was that attempts at creating a ‘self-
regulating market’ are ‘bound to create resistance in those social sectors “most
immediately affected by the deleterious action of the market”’, giving rise to a
‘counter-movement by society in response to the effects of the unregulated market
system’: R Munck ‘Globalisation, labour and the Polanyi problem; Or, the issue of
counter-hegemony’ in C Phelan (ed) The future of organised labour: Global perspectives
(2006) 138, citing K Polanyi The great transformation: The political and economic origins of
our time (2001). See also R Munck ‘Globalization and contestation: A Polanyian
problematic’ (2006) 3 Globalizations 175 179-180 http://www.dcu.ie/community/
contestation_1.pdf (accessed 10 July 2013). However, it does not follow that the impact
of unregulated market forces on workers and their families will be combated primarily
by means of the existing institutions of labour law.
67 A Hyde ‘The idea of the idea of labour law’ in Davidoff & Langille (n 38 above).
 Situating domestic work in a changing global labour market 19

‘commodity’. Taken to its logical conclusion, the effect might well be the
entrenchment of the employer’s power to govern the workplace and
reversion to ‘employment at will’,68 as has long been the case de facto in
unorganised workplaces where labour law is a dead letter. The difference
is that this would become the legal norm.69

Social contestation, however, is seldom a zero-sum game. The drive

for liberalisation of the labour market will continue to provoke resistance
and debate about alternatives. The present discussion is essentially about
conceptualising an alternative to the remnants of the Fordist model of
labour law that could prove to be more stable and accommodating than the
conflict-ridden neo-liberal model.

In taking up this challenge, labour law scholars cannot avoid engaging

with the central problem of recent decades: the difficulty of regulating
work in forms other than ‘standard employment’ and in increasingly
complex value chains dispersed around the globe. The problem, it is
suggested, is not only structural but also ideological, in other words, bound
up with the assumptions in which labour law has been rooted. The
uniformities of the Fordist world in which labour law nurtured notions of
equality and fairness based on the imposition of uniform standards,
national legislation and centralised collective bargaining were obvious
mechanisms for achieving this purpose. Even though this paradigm has
been extensively criticised and questioned, for practical purposes it still
remains the norm. The paradigm of uniformity, it is suggested, goes some
way towards explaining the difficulty of regulating a world of work
characterised by growing diversity.

The depth of the problem is illustrated by the attempt of the South

African legislature in the late 1990s to fashion an alternative paradigm of
‘regulated flexibility’.70 In fact, flexibility within this model is possible only
within well-defined limits. Virtually all fundamental aspects of labour
relations – including dismissal, collective bargaining and industrial action
– are governed by uniform rules. Deviations are permitted only by way of
exception, usually by means of collective agreements in a context where
industry-level bargaining is promoted.71 Uniformity thus remains the
norm, variation the exception.

68 Ie, the common law doctrine that either party may terminate the employment contract
at any time, without notice and without reason.
69 As indicated by Hyde (n 67 above), such a scenario is conceivable only in a context
where the power of organised labour has been eroded to a degree where it is unable to
offer effective resistance.
70 See H Cheadle ‘Regulated flexibility: Revisiting the LRA and the BCEA’ (2006) 27
Industrial Law Journal 663.
71 See sec 1(d)(ii) of the LRA and ‘Labour Relations Act 66 of 1995 and Explanatory
Memorandum’ (1995) 16 Industrial Law Journal 278 284.
20 Chapter 1

To arrive at a workable model of ‘regulated flexibility’, it is suggested,

it must be recognised that the ‘one size fits all’ approach to regulation
inherited from the Fordist era is no longer viable. The complex nature of
work in a globalised setting has created a need for on-going diversification
and fine-tuning of legal rules and, by implication, a greater diversity of
regulatory structures capable of performing this function. This also brings
into play the ‘substantive’ meaning of equality, as opposed to ‘formal’
equality, which is enshrined in the Constitution72 and the LRA; that is,
understanding that ‘equality includes a recognition of difference. People
who are not similarly situated should not be treated alike’.73 This, too,
implies a degree of variability in labour market regulation to accommodate
differences in the circumstances under which work is performed and, once
again, regulatory processes capable of delivering such variation.

This echoes the idea of ‘responsive regulation’ put forward by Ayres

and Braithwaite in response to the programme of ‘deregulation’ associated
with the Washington Consensus some twenty years ago.74 Regulation,
they argued, should ‘be responsive to industry structure in that different
structures will be conducive to different degrees and forms of regulation’.75
‘Responsive regulation’, thus, was proposed not as a defence of the existing
regulatory framework but as an alternative to ‘an all-or-nothing choice
between the laissez-faire policies of the right and the traditional centralized
interventions of the left’.76 It means more than seeking the flexible
application of centralised regulation; the premise is that centralised
structures are simply not capable of responding with the necessary
sensitivity to the complexities of highly divergent areas of social activity.
Provided it is adequately monitored, Ayres and Braithwaite concluded,
‘public policy can effectively delegate government regulation of the
marketplace’ to appropriate levels, thus bringing into existence an
‘enforcement pyramid’.77

72 Sec 9(2) of the Constitution states that ‘[e]quality includes the full and equal
enjoyment of all rights and freedoms’.
73 Pillay v KwaZulu-Natal MEC of Education & Others 2006 (10) BCLR 1237 (N) para 41.
‘Substantive equality’, Kondile J went on to explain, ‘does not require symmetry. It
demands asymmetry’ para 58. The principle is entrenched in sec 9(3) of the
Constitution.
74 I Ayres & J Braithwaite Responsive regulation: Transcending the deregulation debate (1992);
for abstract, see http://islandia.law.yale.edu/ayres/respons.htm (accessed 10 April
2012). See also B Hepple ‘Negotiating social change in the shadow of the law’ (2012)
129 South African Law Journal 248 254-256 and discussion in part 4.5 of Chapter 2
(below).
75 Ayres & Braithwaite abstract (n 74 above); or, as paraphrased by Marshall et al,
‘responsive regulation essentially means that the State is more sensitive to local
environments in its harnessing and deployment of resources and application of
different regulatory techniques to achieve particular policy goals’: S Marshall et al
‘Labour law and development: Creating an enabling regulatory environment and
encouraging formalisation’ Paper submitted for Conference of the Regulating for
Decent Work Network, ILO, Geneva, 8-10 July (2009) 16.
76 Ayres & Braithwaite (n 74 above) 16.
77 As above. For a concise explanation of ‘regulatory pyramid’, see Hepple (n 74 above)
255.
 Situating domestic work in a changing global labour market 21

In the context of labour market regulation it can accordingly be argued

that, to achieve greater responsiveness to the realities of different sectors,
workplaces or work processes, regulatory structures should be
‘decentralised’78 in such a way as to enable the workers and employers
concerned to take part directly in formulating the rules by which their
relationships are governed. The role of centralised regulation would
consist essentially of setting outer limits and protecting minimum
standards, while leaving the greatest possible autonomy to the parties
directly concerned.

In the next section this approach will be considered in more detail as a

basis for conceptualising a regulatory model for the domestic work sector.

8 Towards a model of responsive regulation

Developments since the 1990s have lent substance to the thesis developed
by Ayres and Braithwaite. In general, a decline in the efficacy of national
legislation as a mechanism of labour market regulation and a shift towards
more diversified forms of regulation have been among the by-products of
globalisation. This has taken various forms, including the involvement of
non-state parties. As Hendrickx notes:79

The power of the state as level of intervention in labour relations is eroding in

a global context. Furthermore, the power may also shift away from
governments to other actors. The balance between state and international or
non-state elements may tilt in favour of the latter two (with the rise of
multinational companies issuing corporate codes of conduct, soft law
interventions and regional integration strategies as exponents), especially in a
global space with high capital mobility.

This trend may be understood as confirming the assumption that issues

which are specific to a given environment or sector can be dealt with more
effectively by internal or specialised sets of rules, reflecting input by the
parties directly concerned, than by rules of general application.80 This may
apply vertically (in other words, referring to different levels of devolution
within the same jurisdiction) as well as horizontally (in other words,

78 In the remainder of this chapter ‘decentralised legislation’ is treated as the flip side of
‘responsive regulation’, in that responsive regulation implies a degree of devolution if
an alternative to ‘traditional centralised interventions’ is to be created. ‘Responsive’
may be said to refer to the nature of such alternative regulatory arrangements,
‘decentralised’ to their form.
79 F Hendrickx ‘The future of collective labour law in Europe’ (2010) 1 European Labour
Law Journal 59 63 http://arno.uvt.nl/show.cgi?fid=113669 (accessed 28 June 2012).
80 This corresponds to the political principle of ‘subsidiarity’, which the Oxford
Dictionary explains as follows: ‘a central authority should have a subsidiary function,
performing only those tasks which cannot be performed at a more local level’: Oxford
Dictionaries Online http://oxforddictionaries.com/definition/english/subsidiarity?
q=subsidiarity (accessed 26 November 2012). For an application thereof, see art 5 of
the Maastricht Treaty of the European Union.
22 Chapter 1

referring to cross-cutting categories that traverse different jurisdictions).

An example of the latter has been the rise of regulatory differentiation
between larger and smaller enterprises. Particularly in Latin America, it
has been noted,

a new generation of labour reforms is appearing … which considers that

labour and labour-related laws should treat differently … firms of different
sizes. This is a very appealing idea in a region with high informality rates, a
large share of the labour force working in small and low productivity business,
and where there seems to be a positive correlation between the capability of
governments to effectively implement labour and labour-related laws and firm
size.81

In the field of collective bargaining the principle of decentralisation has

long been accepted as a means of achieving greater flexibility. Here, too, a
trend towards less centralised forms of bargaining has emerged in many
countries. Commenting on changes in the nature of bargaining
relationships, the ILO notes:82

Much greater attention is given to issues of productivity and performance

when determining wages. In order to achieve greater internal flexibility,
stronger emphasis is placed on negotiating issues such as the reorganisation of
work, flexible working hours, and pay for performance and skills within the
context of employment relations at the enterprise level. This general tendency
to negotiate certain issues at an enterprise level has in some countries led to
the decentralisation of industrial relations systems.

These trends have found only limited application in South African labour
law. Bargaining councils represent the most important instruments of
regulatory decentralisation.83 Bargaining councils have extensive
regulatory powers at a sectoral level. However, scope exists for workplace-
level bargaining to supplement sectoral agreements,84 and both the LRA
and the BCEA provide some latitude for statutory minimum standards to
be varied by collective agreement within given limits.85 However,
collective bargaining at sectoral as well as workplace level remains almost
exclusively confined to the traditional area of wages and working

81 J Chacaltana ‘Economic implications of labour and labour-related laws on MSEs: A

quick review of the Latin American experience’ Employment Working Paper No31
ILO, Geneva 2009 2. The author goes on to explain: ‘almost every country in the
region has already some kind of differentiated treatment by firm’s size, at least in some
parts of the regulations. However, the new tendency towards a completely different or
special regime for MSEs is new. It already exists in Peru and Paraguay …, to a lesser
extent in Argentina and Brazil … and there has been debate about it in at least
Venezuela and Mexico’; as above.
82 ILO Working Party on the Social Dimensions of Globalisation Organisation, bargaining
and dialogue for development in a globalizing world (November 2000) 35.
83 For detailed analysis of the nature and functioning of bargaining councils, see
S Godfrey et al Collective bargaining in South Africa: Past, present and future? (2010).
84 LRA, secs 23 and 28.
85 See, eg Basic Conditions Employment Act 75 of 1997 (‘BCEA’), secs 11 and 12; and
LRA, sec 21.
 Situating domestic work in a changing global labour market 23

conditions. There appears to be very little engagement at a sectoral level on

regulatory issues such as ‘policy and legislation that may affect the sector
and area’ which is expressly provided for by the LRA86 or, at a workplace
level, on the wide range of regulatory issues on which employers are
obliged to consult with workplace forums in workplaces where they
exist.87 In practice, trade unions have adopted a conscious strategy of
opposing the establishment of workplace forums in order to concentrate
their energies on distributive collective bargaining.88 At the same time,
bargaining councils exist only in limited, and possibly dwindling, areas of
the economy, while plant-level bargaining structures have declined since
the 1980s.

Against this background it is suggested that regulatory decentralisation

should be seen as a policy objective to be pursued as a pre-emptive means
of addressing the limitations and shortcomings of the existing framework
of labour market regulation, rather than being allowed to develop in a
piecemeal fashion through a process of adversarial engagement between
employers and labour. It is not proposed to speculate in any detail about
the forms that such a development might take although, in the remainder
of this study, some concrete ideas are offered as to its possible implications
in the domestic work sector. In general, it would signify a narrowing down
of national labour legislation to issues that are genuinely all-embracing, for
example, maintaining a floor of rights and minimum standards, by means
of enabling (‘framework’) statutes that would provide for the detailed
regulation of such rights and standards by secondary regulatory processes.
This would also imply the creation of a framework for the establishment of
secondary regulatory structures of various kinds, inter alia to set criteria for
their constitution and jurisdiction.89

The experience of bargaining councils (that were, after all, designed to

play precisely this role) offers some pertinent lessons. The voluntary nature
and broadly-defined powers of bargaining councils, giving the parties
freedom to make more detailed rules, set positive precedents for other

86 LRA, sec 28(1)(h).

87 LRA, secs 84-86. Workplace forums, governed by Chapter V of the LRA, are bodies of
elected worker representatives which may be established by majority trade unions on a
voluntary basis.
88 A strongly-held perception, which probably has some substance, is that many
employers are hostile to worker participation in managerial decision-making and
would instead seek to manipulate workplace forums to undermine the bargaining
power of trade unions.
89 Ayres & Braithwaite (n 74 above) speak of the delegation of regulatory powers ‘to
public interest groups (Chapter 3), to unregulated competitors of the regulated firms
(Chapter 5), and even to the regulated firms themselves (Chapter 4)’. Again, the
regulation of bargaining councils in Chapter III part C of the LRA offers an example
in the South African context. Other possibilities are suggested by advisory bodies such
as the Employment Conditions Commission (Chapter 9, BCEA); similarly-constituted
bodies could exercise regulatory powers in appropriate areas.
24 Chapter 1

regulatory structures that may come into existence.90 A significant

limitation of bargaining councils, however, has been the restriction of their
membership to registered trade unions and employers’ organisations.91
This excludes a range of role-players, including non-party employers and
non-unionised workers as well as other groups, such as small traders, who
may play a significant role in certain sectors, and may be significantly
affected by council decisions, but have little means of influencing them.92
Membership of regulatory structures, it is suggested, would need to be
defined as inclusively as possible, given the nature of their areas of
jurisdiction, with a view to ensuring their legitimacy and effectiveness.

A number of possible scenarios can be imagined for promoting the

development of effective regulatory structures in different sectors and at
different levels. In sectors93 where standard employment and large-scale
organisations remain the norm, such as the public sector, sectoral
collective bargaining may well remain the most effective means of
regulation. In situations where this is not the case, an approach based on
the principle of ‘responsive regulation’ would call for the creation of more
appropriate institutions. For example, specialised regulatory structures
may be created for areas of the economy or categories of work which are
largely unorganised and are currently regulated by sectoral
determinations94 or, very broadly, by statutory provisions.95 Included
among these, of course, is the domestic work sector.96 The essence of
‘responsive regulation’ would be to supplement or replace top-down
administrative or centralised regulatory procedures with representative
(decentralised) structures and processes adapted to the conditions of the

90 A similar point can be made in respect of workplace forums, see n 87 above, although
the very small number of workplace forums operating in practice makes it difficult to
draw any conclusions.
91 LRA, sec 27.
92 Sec 30(1)(b) of the LRA states that the constitution of a bargaining council must make
provision for ‘the representation of small and medium enterprises’; evidence as to the
effectiveness of this provision, however, is inconclusive: see Godfrey et al (n 82 above)
70-71, 94-95. The reality appears to be that larger, better-resourced organisations are
more equipped to participate in the relatively complex procedures of councils
governing major sectors and that smaller organisations may fare better in structures
designed to accommodate their needs.
93 In terms of sec 213 of the LRA, ‘sector’ in the private sector means ‘industry or
service’.
94 Issued by the Minister of Labour in terms of Chapter 8 of the BCEA; for example,
Sectoral Determination 1: Contract Cleaning Sector, South Africa; Sectoral
Determination 5: Learnerships; Sectoral Determination 6: Private Security Sector,
South Africa; Sectoral Determination 10: Children in the Performance of Advertising,
Artistic and Cultural Activities, South Africa; Sectoral Determination 11: Taxi Sector;
and Sectoral Determination 13: Farm Worker Sector, South Africa.
95 The proposed new secs 198 and 198A, 198B and 198C of the LRA, applicable to
temporary employment services, temporary employees and part-time employees
respectively, are examples of such provisions. Another example is the regulation of
essential services in terms of secs 70-74 of the LRA.
96 Regulated by Sectoral Determination 7: Domestic Worker Sector, South Africa;
discussed in Chapter 3 below where the implicit paternalism of top-down, non-
inclusive forms of regulation is noted.
 Situating domestic work in a changing global labour market 25

sector or, in the case of general statutory provisions, delegate their detailed
implementation to such structures.

Corresponding scenarios can be imagined at a supra-national level

where existing forms of labour legislation are relatively ineffective.97 There
are precedents of organisation and internal regulation within transnational
corporations as well as framework agreements between transnational
corporations and international trade union structures applicable to the
activities of the corporation in different countries.98 In particular, the
extent to which the corporate social responsibility framework offers a basis
for developing intra-organisational regulatory processes across national
boundaries remains to be explored.99

All the scenarios and examples referred to above, it should be

emphasised, are offered only by way of illustration; more research will be
needed to arrive at concrete strategies. It will be evident, however, that the
potential development of labour law implicit in regulatory decentralisation
is far-reaching. While remaining bound by common principles,100
decentralised structures in different sectors could apply those principles
creatively and in suitably adapted forms. ‘Unfair dismissal’, for example,
may be defined and regulated differently in the contexts of (say) temporary
employment services and the deep-sea fishing industry. Similarly,
collective wage regulation may follow very different routes in sectors
where trade unions have a strong presence and sectors where they are
absent. To this extent the notion of ‘labour law’ as a single discipline may
need to be qualified as different fields of specialisation (such as ‘public-
sector labour law’ or ‘transnational labour law’) emerge, each with its own
set of concepts, institutions and rules.

This also implies that the distinctions between ‘standard’ and ‘non-
standard’ work, as well as ‘formal’ and ‘informal’ economic activity, may

97 ILO Conventions, representing the most comprehensive form of international

regulation, are implemented primarily by means of national legislation.
98 In general see ILO Working Party on the Social Dimension of Globalization
Information note on corporate social responsibility and international labour standards
(November 2003; N Hammer ‘International Framework Agreements: Global
industrial relations between rights and bargaining’ (November 2005) 11 Transfer:
European Review of Labour and Research 511.
99 See AR Harrington ‘Corporate social responsibility, globalization, the multinational
corporation, and labour: An unlikely alliance’ (2011-2012) 75 Albany Law Review 483
486; D du Toit ‘Self-regulated corporate social responsibility: The impact on
employment relations at European corporations in South and Southern Africa: A
preliminary overview’ (2009) 30 Industrial Law Journal 2227. An interesting, albeit
partial, analogy is suggested between CSR codes and the emergence of the medieval
lex mercatoria in a similarly unregulated environment. Although the analogy may be
misplaced in the context of human rights protection, it lends itself more to the
regulation of employment relations: cf E Nagle ‘Corporate Social Responsibility
(CSR): Market-based remedies for international human rights violations?’ (2004) 40
Willamette Law Review 103. This may also apply in the context of transnational value
chains: see Dicken (n 34 above) 10.
100 In particular, decentralised as much as centralised regulation should be compliant with
the basic rights laid down by the Constitution and international law.
26 Chapter 1

diminish or disappear. To the extent that ‘non-standard’ work has become

increasingly ‘standard’ while ‘standard’ work has become increasingly
‘precarious’, these categories have for some time been converging.
Similarly, value chains linking mainstream employers with unregulated
labour blur the distinction between the ‘formal’ and ‘informal’
economies.101 What defines the parameters of today’s ‘informal
economy’, essentially, are gaps in the regulatory framework where existing
institutions find little effective application to workers who are,
nevertheless, very much part of the productive process.102 By focusing on
the real composition of productive systems and value chains, in a context
of a framework of ‘responsive’ regulation via decentralised structures,
many of these gaps may be closed.

The longer the gradual unravelling of the existing model of labour law
continues, the more clearly the need for creative alternatives will be placed
on the agenda. Decentralised regulation in itself may not necessarily
deliver all the flexibility that employers are demanding. It would, however,
create an environment where certain unintended constraints of
centralisation could be avoided and more of the benefits of flexible
regulation could be realised through the ‘harnessing and deployment of
resources and application of different regulatory techniques’.103 The
importance of exploring such an approach goes beyond more effective
regulation as a purpose in itself. As will be argued in Chapter 7, in sectors
characterised by small-scale or individual employment (such as the
domestic work sector) the individual empowerment of workers is no less
essential than collective empowerment as a counterweight to the
employer’s power of command if workers’ fundamental rights are to be
implemented consistently. Decentralised regulatory structures and
processes designed to involve workers directly, together with employers,
would empower them more than existing administrative and legislative
processes from which they are effectively excluded. Within the
transformative vision of the South African Bill of Rights, arguably, this is
the greatest significance of responsive regulation.

9 Development of responsive regulation in the

domestic work sector

Domestic work has been presented in this chapter in a social context, as

part of the economic system which lies at the core of the transformative

101 Eg, through ‘externalisation’: cf J Theron ‘Employment is not what it used to be’
(2003) 24 Industrial Law Journal 1247; P Benjamin ‘Decent work and non-standard
employees: Options for legislative reform in South Africa: A discussion document’
(2010) 31 Industrial Law Journal 845. See also Von Broembsen (n 64 above) 4.
102 Eg, in the domestic work sector, where the impossibility of regulating work under
highly specific conditions by means of undifferentiated national legislation is
graphically illustrated.
103 Marshall et al (n 75 above) 19.
 Situating domestic work in a changing global labour market 27

project,104 rather than a purely individual employment relationship. The

remaining chapters of this book may be seen as building blocks towards a
regulatory model based on the principle of responsive regulation in this
sector. It has already been noted that this exercise takes place within a
context of protracted economic uncertainty and intensified pressures for
labour market deregulation, calling into question the very right of existence
of labour law in its traditional role. To this should be added, in the case of
South Africa, a further crisis of legitimacy for labour law signalled by the
Marikana massacre.

The crisis was triggered by a section of mineworkers rejecting the

statutory collective bargaining system and resorting to extra-legal strike
action.105 This in itself may, on the face of it, seem paradoxical. The
strikers did not come from a marginalised section of the working
population; contrary to conventional wisdom, they were employed by a
transnational corporation in one of the most highly-regulated sectors and
belonged to the most powerful trade union in the country. Nor have South
African workers been exposed to any significant erosion of their rights, as
in countries such as Greece, discussed above. On the contrary, the
amendments to the principal labour statutes that were before parliament at
the time the crisis erupted offered a significant extension of the protection
of non-standard workers in particular. The causes of the explosion must be
sought elsewhere. Hartford sums up the explosive ingredients of what
might herald a new beginning in labour relations development:106

[M]assive unprocedural industrial action mounting; billions of Rand of lost

production; growing negative mining investor sentiment; in excess of 50
deaths and hundreds of injuries; total collapse of collective bargaining
structures and agreements; destruction of the majority union and emergence
of often uncoordinated strike and interim committees to represent workers;
emergence of a new minority union; loss of union legitimacy in general as
many workers have not joined any union; extreme violence and intimidation;
deep anger and distrust between employees; further anger and distrust
between employees and managers and between employees and state law
enforcement authorities.

104 Eg, the right to fair labour practices cannot be seen separately from the broader
purpose of protecting economic activity as the vehicle of transformation, which runs
throughout the Bill of Rights. This is promoted both directly – eg, through the
protection of the right to choose a trade, occupation or profession (sec 22 of the
Constitution) and the right to property (sec 24) – and indirectly, through the
entrenchment of ‘socio-economic rights’ such as the right to housing (sec 26) and
health care, food and water (sec 27) which, by implication, call for the optimal
production of the necessary goods and services. It is equally significant that the
primary purpose of the LRA, serving to contextualise the individual and collective
rights of workers, is ‘to advance economic development, social justice, labour peace
and the democratisation of the workplace’: LRA sec 1.
105 For a thought-provoking analysis, see G Hartford ‘The mining industry strike wave:
What are the causes and what are the solutions?’ Groundup 10 October 2012 http://
groundup.org.za/content/mining-industry-strike-wave-what-are-causes-and-what-are-
solutions (accessed 31 January 2013).
106 Hartford (n 105 above).
28 Chapter 1

It is the ‘total collapse of collective bargaining structures and

agreements’ that makes these events so significant in the present context,
combined with the fact that this lawless eruption of anger – in law a ground
for mass dismissal, and initially treated as such – led to the conclusion of a
collective agreement overriding the procedural collective agreement that
had been in place. Perhaps even more significantly, it has reportedly
produced a change of heart on the part of the employer in a quest to rebuild
a relationship of trust with workers.107 Though dismaying from a human
rights and traditional labour law perspective, it may be that these deeply
unsettling conditions may ultimately be conducive to promoting the
development of more responsive regulatory models. The shortcomings it
has exposed in South Africa’s relatively worker-friendly labour law
dispensation have put paid to any lingering belief that the problems
associated with lack of regulation in significant parts of the economy will
be resolved by gradually bringing them within the ambit of the existing
regulatory system. Though it is impossible to predict the unfolding of
events, certain conclusions that are important in framing the present study
are suggested by the developments outlined above.

Labour law across a broad front will continue to be faced with great
difficulties in seeking to regulate rapidly changing forms of work, while
pressures for the dismantling of existing regulatory frameworks set in
motion by the financial crisis of 2007 may over time become irresistible.
But, even if this happens, there is nothing inevitable about the outcome.
Times of crisis can be times of great ingenuity. A parallel may be drawn
with South Africa during the early 1990s, when it was finally necessary to
confront questions that had long been suppressed and embrace solutions
that had long seemed unthinkable. Similarly, the crisis of labour law may
compel labour lawyers to confront the questions outlined above in new
and imaginative ways in order to keep alive its emancipatory function.

Against this background it has been suggested that the development of

regulatory institutions for the domestic work sector may be seen as a case
study for the reconceptualisation of labour market regulation in other
sectors where existing institutions and values have unravelled. Alan Hyde,
reflecting on the outlook for labour law in the USA after decades of
decline, offers a stark scenario:108

Labour law will continue as a technical branch of regulation, like securities or

banking regulation. People will consult its rules before doing, or not doing
things. But nobody will think to look to labour law for inspirational values,
any more than they expect to find these in securities or banking regulation.

107 ‘Lonmin seeks “new deal with stakeholders” to avoid Marikana repeat’ Business Day 31
January 2013 http://www.bdlive.co.za/business/mining/2013/01/31/lonmin-seeks-
new-deal-with-stakeholders-to-avoid-marikana-repeat (accessed 6 February 2013).
108 A Hyde (n 67 above). Given the still-dominant position of the US economy in the
global economy and its historical role as a source of innovation, it may be
inappropriate to see the trends emerging within it as a purely US phenomenon.
 Situating domestic work in a changing global labour market 29

We will have to be inspired by something else. Something must inspire us,

even more utopian than was The Idea of Labour Law even in its golden age.
We can take inspiration from freedom and equality and democracy and
human development for their own sakes. But not, any more, from The Idea of
Labour Law. This time, as a source of inspiration, it is really over.

The bigger question posed by this study is whether the goals of ‘freedom
and equality and democracy and human development’ that are intrinsic to
the Bill of Rights might provide ‘inspiration’ not only for the development
of an appropriate regulatory framework for the domestic work sector but,
in doing so, contribute to the renewal of labour law across a broader
spectrum.
 2
CHAPTER
ADVANCING DOMESTIC
WORKERS’ RIGHTS IN A
CONTEXT OF TRANSFORMATIVE
CONSTITUTIONALISM

Wessel le Roux*

1 Introduction

It is useful to start with a discursive overview of the central issue addressed

in this chapter as a means of contextualising the discussion that follows.
The statements made and concepts referred to in this overview will be
analysed more closely in the remainder of the chapter.

Transformative constitutionalism means social change (trans-

formation) through law (constitutional rights). It promises that
fundamental social change (transformation) can come about through legal
reforms, backed by popular mobilisation, and enforced through litigation.
It promises that people can change their lives and society by arresting their
rights.

The idea that law can serve as a medium of social change followed in
South Africa on decades of political struggle where change was pursued
through extra-constitutional means, including armed struggle. The
constitutional and the legal order were understood as part of the order that
had to be challenged and not as a medium of change. This resonated with
the traditional Marxist view of law as an expression of the status quo and
not as a means of social change, let alone the primary means. According
to Marxists like Pashukanis, the legal form and the commodity form was
part of the same cultural and economic order.1 Similarly the Critical Legal
Studies movement insisted that social movements organised around the

* Part 4 of this chapter draws on research done by F Mullagee. Parts 5, 6 and 7 draw on
a paper by D du Toit & E Huysamen ‘When bubbles burst: An analogy for the current
state of the global economy and of labour law?’, presented at the International Labour
Law and Social Protection Conference held at the University of Johannesburg on 27-
30 August 2012.
1 ‘Editor’s Introduction to Evgeny Pashukanis’ in P Beirne & R Sharlet (eds) Selected
writings on Marxism and law (1980) 273-301 http://www.marxists.org/archive/
pashukanis/biog/biogintro.htm (accessed 6 February 2013).

31
32 Chapter 2

assertion of constitutional rights were alienating and thus counter-

transformative.2 Law had to be debunked to get the centrality and order of
law out of our political imagination and to open new visions of society and
transformation.

On the other side of the political spectrum, liberal constitutionalism

insisted on a clear separation between law and politics (transformation).
Liberal constitutionalism was concerned with protecting the rights of
individuals, including vested property rights and the economic distribution
of the private sphere. It was designed to limit interference with and
regulation of the market, reaching its crudest expression in the judgments
of the United States Supreme Court setting aside six of President
Roosevelt’s interventionist New Deal statutes.3 This discourse of rights
concentrates on the negative obligations of the state and the justness of the
market and a minimally unregulated society.

The ideology of transformative constitutionalism in post-apartheid

jurisprudence, as discussed in some detail below, developed in sharp
contrast to these two traditions. It placed its hope in the Constitution and
an obligation on the courts the drive the transformation of society through
law and litigation. At the same time it vastly increased the scope for such
litigation through the practice of constitutional review based on an
extensive and justiciable Bill of Rights. It suggested that extra-
parliamentary and constitutional struggle could be assimilated into
constitutional processes.

Tumultuous events in South Africa during 2012, including the

Marikana massacre4 and violent farm workers’ strikes in the Western
Cape, have called these assumptions into question and caused reservations
even among some of those working within the paradigm of transformative
constitutionalism as to its relevance as a driver of fundamental social
transformation.

This is not the place to analyse events which are still in the process of
unfolding, let alone explore their longer-term significance in a context of
global instability and change. The book is concerned with prospects for the
effective implementation of workers’ basic rights in a largely unregulated
sector, a task (it will be argued) which by definition calls for new ground to
be broken, new institutions to be created and new paradigms to be created.
This applies equally to the unfulfilled promise of the idea of transformative
constitutionalism.

2 See, for example, RM Unger ‘The critical legal studies movement’ (1982-1983) 96
Harvard Law Review 561.
3 See, for example, Schechter Poultry Corp v US (1935) 295 US 495, Louisville Joint Stock
Land Bank v Radford (1935) 295 US 555, United States v Butler (1936) 297 US 1 (1936),
Carter v Carter Coal Co (1936) 298 US 238.
4 See part 9 of Chapter 1 (above).
 Advancing domestic workers’ rights in a context of transformative constitutionalism 33

Within this context the aim of the chapter is to examine transformative

constitutionalism as a framework for conceptualising the legal and social
change implicit in the above task. It is imperative to clarify that this does
not present law as the primary driver in the process of its own
transformation;5 as argued throughout this study, legal transformation is
understood as a product of agency on the part of those most directly
concerned, in this case depending crucially on the mobilisation of domestic
workers themselves. In this process the supportive role of law and the
enabling framework created by the Bill of Rights are seen as important in
facilitating such mobilisation by creating legal space to a degree
undreamed of in the 1980s. More than this, by placing particular
obligations on the state, the Constitution may add momentum to
developments set in motion that are in accordance with its objectives.

But this still does not suggest a self-executing process. It is trite that the
law, as much as other areas of social engagement, is contested territory.
Every constitutional provision is subject to interpretation; it cannot be
expected that interpretations of the relevant provisions that are most
favourable to the cause of domestic workers will necessarily prevail. Rights
may remain a dead letter, as in the case of many rights formally extended
to domestic workers, unless their subjects insist on their implementation
and, where necessary, on institutional change to make that possible.

This book is concerned with reinforcing the case for insisting on a

regulatory framework capable of implementing domestic workers’ rights
across a broad spectrum. This chapter is concerned with advancing the
interpretation of the Constitution as a fundamental underpinning for this
transformative project. The two exercises are mutually supportive. But
neither outcome can be guaranteed. Whether faith in a rights-based
approach to the transformation of domestic work remains justified, or
whether the idea of transformative constitutionalism has a normative
failure built into it, as opposed to failed implementation, remains to be
seen. For this reason, it is more urgent than ever to clarify what we mean
when we speak about transformative constitutionalism. The chapter below
is dedicated to this task.

2 A new synergy between international law and the

constitution

On 16 June 2011 the General Conference of the International Labour

Organisation (ILO) adopted the Domestic Workers Convention, 2011
(Convention 189 or the Convention) and the Domestic Workers
Recommendation, 2011 (Recommendation 201). These two international

5 In labour law, certainly, it is well understood that law is ‘a secondary force’: compare
PL Davies & MR Freedland Kahn-Freund’s: Labour and the law (1983) 13.
34 Chapter 2

law instruments contain the most up-to-date statement of domestic work

as ‘decent work’.6 The preconditions of decent domestic work are
formulated in the Convention as a series of legally enforceable rights and
duties. It is the obligation of each member of the ILO that signs and ratifies
the Convention to adopt domestic legislation, regulations and other
measures to regulate the rights and duties of domestic workers and
employers in accordance with the Convention.7

South Africa was one of the first parties to sign Convention 189 and
ratified it on 7 June 2013. South Africa is in the fortunate position that
most of the regulatory framework prescribed by the Convention already
exists and has done so for more than a decade.8 In sharp contrast to
apartheid, when domestic workers were deliberately excluded from the
reach and protection of labour or employment law, domestic work is at
present extensively regulated by the Labour Relations Act 66 of 1995
(LRA), the Basic Conditions of Employment Act 75 of 1997 (BCEA) and
Sectoral Determination 7 of 2002 (SD7) which prescribes the basic
employment conditions of domestic workers. These legislative measures
are enhanced by a Bill of Rights in which the constitutional rights of
domestic workers are protected. Post-apartheid legal reform reflects a
conscious and comprehensive attempt to include domestic workers as
workers within the established labour and employment law framework.

However, as is nearly always the case with law, there is an obvious gap
between the law in the books and the law in action. It is an open question
whether, after a decade of statutory regulation, domestic work in South
African can realistically be described as decent work. Domestic work not
only remains devalued economically and very low-paid, but the political
and constitutional value(s) implied by the ideal of decent domestic work
remain under-appreciated and under-explored. Even where domestic work
is appreciated as economically valuable and a basis for legitimate claims to
economic security and poverty alleviation, the close connection between
the economic and democratic dimensions of decent domestic work is not
always understood. What is needed is a way of reflecting on the rights of
domestic workers in which legal reform of the domestic workplace also

6 The concept is considered more fully in part 6 of this chapter and in Chapter 3 below.
For the sake of completeness it should be noted that Convention 189 does not
supersede existing Conventions but supplements them; the Preamble expressly notes
the following as being of particular relevance for domestic workers: the Migration for
Employment Convention (Revised), 1949 (No 97), the Migrant Workers
(Supplementary Provisions) Convention, 1975 (No 143), the Workers with Family
Responsibilities Convention, 1981 (No 156), the Private Employment Agencies
Convention, 1997 (No 181), and the Employment Relationship Recommendation,
2006 (No 198), as well as of the ILO Multilateral Framework on Labour Migration:
Non-binding principles and guidelines for a rights-based approach to labour migration
(2006). Taken together, these instruments add further depth to the concept of ‘decent
work’.
7 Convention 189, art 18.
8 Sectoral Determination 7, which regulates the basic conditions of employment for
domestic workers, came into operation in 2002.
 Advancing domestic workers’ rights in a context of transformative constitutionalism 35

serves as a strategy to transform the political landscape of society in such a

way as to accommodate those rights.

One question is whether Convention 189 may provide the impetus for
a deeper understanding of the link between the ‘social’ and the
‘democratic’ in the ideal of social democracy9 or transformative
constitutionalism. Convention 189 provides an international standard
against which the regulation of domestic work can be measured. Doing so
might reveal gaps in South Africa’s regulatory framework, either as far as
the content of substantive legal provisions is concerned or as far as the
effective enforcement of existing law is concerned. Convention 189 might
thus provide valuable new momentum for a series of substantive legal
reforms with a view to better laws and better enforcement of the law.

The obligation to implement such reforms derives from the substantive

provisions of the Convention itself and would thus, strictly speaking, only
be established one year after ratification of the Convention.10 There is no
need to anticipate any resistance to this kind of reform once the
Convention had been ratified. On the contrary, the drafters of the South
African Constitution had embraced the internationalisation of our law in
section 233 of the Constitution which provides as follows:

When interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent with international law over
any alternative interpretation that is inconsistent with international law.

With this provision the constitutional drafters welcomed the global shift
away from the paradigm of legality to what is today often described as the
paradigm of ‘inter-legality’. The latter paradigm locates legal meaning in
the contested space between legal texts at different levels of the global legal
order. In this paradigm, a plurality of alternative meanings is celebrated as
a normal and valuable feature of modern law, not as something to be
denied or suppressed. What section 233 does is to set about employing the

9 The term is used in this chapter not in its historical or party-political sense but, more
broadly, as referring to political democracy embedded in the protection of individual
rights combined with the promotion of social values, as discussed below. For further
discussion see eg S Jagwanth ‘Democracy, civil society and the South African
Constitution: Some challenges’ UNESCO Management of Social Transformations
Discussion Paper 65 (2003) http://unesdoc.unesco.org/images/0012/001295/
129557e.pdf (accessed 9 February 2013).
10 Art 21. The Convention only becomes binding on those Members of the ILO whose
ratifications have been registered with the Director-General of the ILO with effect
from a date 12 months after registration. South Africa’s ratification was registered on
20 June 2013: ILO ‘Ratifications of C189 – Domestic Workers Convention, 2011 (No
189)’ http://www.ilo.org/dyn/normlex/en/f ?p=1000:11300:0::NO:11300:P11300_
INSTRUMENT_ID:2551460 (accessed 30 June 2013).
36 Chapter 2

plurality of meaning in service of a particular constitutional objective.11 As

such it requires a shift away from grammatical modes of interpretation
(concentrating on the letter of the law) to purposive or teleological modes
of interpretation (concentrating on the spirit or values of the law).12

Section 233 creates an independent constitutional duty, not grounded

in the text of Convention 189, to interpret all new reforms and to reinterpret
all existing South African legislation on domestic work in conformity with
Convention 189. The Constitution prescribes a similar cosmopolitan
approach for the future whenever the Bill of Rights, as opposed to
legislation, is used to ground a claim about the rights of domestic workers
in South Africa. Section 39(1)(b) requires that every court, tribunal or
forum must consider international law, in this case Convention 189, before
it determines the content or meaning of a specific right in the Bill of Rights
for domestic workers. This injunction forms part of a more general
purposive or value-based approach to the interpretation of the Bill of
Rights. In line with this approach, when it considers Convention 189, a
court will likewise be required to take into consideration both the specific
rights in the Convention and the foundational values or ethos that animate
the Convention as a whole. Sections 39(1)(b) and 233 form the backbone
of a constitutional perspective on domestic work after Convention 189.

This chapter explores the synergy that section 39(1)(b) invites between
the constitutional rights of domestic workers under the South African Bill
of Rights and the rights of domestic workers under Convention 189. The
aim of the chapter is to clarify both the international and constitutional
rights framework and the different values or philosophies that could be
said to animate the rights of domestic workers at the international law and
constitutional law levels respectively. The chapter begins with a brief
comparison between the convention and constitutional rights of domestic
workers as an introduction to the more detailed comparisons which are
undertaken in later chapters. It concludes that the Convention adds
nothing radical to the set of domestic workers’ rights already contained in
legislation or implied in the South African Bill of Rights. If the Convention
is to add value to the interpretation of these rights on a domestic level, and
vice versa, it can only be because the Convention sheds new light of the
constitutional or political philosophy that animates the struggle for
domestic worker rights.

More fundamentally, however, Convention 189 has changed the

regulatory landscape because of the new political and economic value it
attaches to domestic work within the people-centred approach to

11 The same pattern is repeated in other sections of the Constitution, such as section 150
where courts are mandated to multiply the meanings at play in the public discourse in
order to promote the value of co-operative government. The key provision is section
39(2) where courts are mandated to explore the plurality of legislative meanings in
order to promote the values animating the Bill of Rights.
12 See generally A Barak Purposive interpretation in law (2005).
 Advancing domestic workers’ rights in a context of transformative constitutionalism 37

development advocated by the ILO and the UN Development Agency.13

Convention 189 forms part of the Decent Work agenda of the ILO,14 and
thus also of the ILO’s vision of social justice and fair globalisation. In this
vision, full productive employment (the creation of decent jobs) should be
promoted as a foundational value of developmental states. In developing
regions like southern Africa domestic work is key to full productive
employment. Domestic employment as gardeners, child minders, care
workers or other forms of domestic help is often the first, if not the only,
form of work available to many citizens of the region, either at home or in
a neighbouring country.

The second part of the chapter compares the development ethos which
informs Convention 189 (the decent work paradigm) with the
development ethos which informs the South African Bill of Rights (the
paradigm of transformative constitutionalism). The aim of the comparison
is to deepen our understanding of the ethos of transformative
constitutionalism as a context in which the struggle for domestic workers
rights in South Africa may be situated. The crux of the argument is the
following: the idea of transformative constitutionalism, as distinct from the
competing ideas of ‘transitional constitutionalism’ and ‘memorial
constitutionalism’,15 was originally formulated in the mid-1990s as a direct
alternative to the dominant neo-liberal consensus about the post-Cold War
political and economic development of the world (often described as the
Washington Consensus). In this vision the horizontal application of the
Bill of Rights and the inclusion of socio-economic rights were designed to
counter the privatisation of state power which drove the neo-liberal
paradigm.

However, it will be shown that the idea of transformative

constitutionalism soon underwent a transformation which left the
Constitutional Court unable to act as an effective counterweight to neo-
liberal development policies. A long decade of frustrating socio-economic
rights litigation saw a number of constitutional scholars proclaiming the
death of transformative constitutionalism. The judgment of the
Constitutional Court in Mazibuko v City of Johannesburg marks this
watershed.16 After the judgment Roithmayr summed up the sombre
mood:17

13 As opposed, that is, to against the profit-centred approach to development enforced

over most of the past three decades by the World Trade Organisation, the International
Monetary Fund and the World Bank: see Chapter 1, (n 40 above).
14 See the discussion in part 6 of this chapter (below).
15 See, eg, I de Villiers ‘South African legal culture in a transformative context’ LLM
thesis, University of Pretoria, 2009 http://upetd.up.ac.za/thesis/available/etd-
09272009-155336/ (accessed 6 February 2013).
16 2010 (3) BCLR 239 (CC).
17 D Roithmayr ‘Lessons from Mazibuko: Shifting from rights to the commons’ (2010)
Constitutional Court Review 317 http://academia.edu/1007996/Lessons_From_
Mazibuko_Shifting_From_Rights_to_the_Commons (accessed 26 June 2013).
38 Chapter 2

[A]fter Mazibuko, the benefits of rights-based litigation for activists may well
be quite small. This is because the Constitutional Court has embraced a
neoliberal interest in cost recovery from the poor, and has declared cost
recovery programs constitutional even when they infringe on socio-economic
rights. In light of the potential cost of engaging in rights litigation, I argue that
the left should rely far less on rights-based litigation as an avenue for the
struggle.

On the other hand, the political complacency sustaining the neo-liberal

consensus of the 1990s had been shaken fundamentally by the 9/11 attacks
on the World Trade Centre in 2001, the resultant War on Terror and the
rise of securocracies in the place of liberal democracies. The remaining
economic complacency sustaining the paradigm was exposed when the
collapse of financial markets in 2008 revealed the unsustainability of
deregulated market growth.18 With the neo-liberal development agenda of
the past 30 years in crisis, the ILO agenda of social justice and fair
globalisation has stepped out of the shadows as an alternative development
strategy. As mentioned above, this strategy centres on full productive
employment and decent work for all. Convention 189 may be seen as the
latest building block in this alternative approach to the political and
economic dimensions of sustainable globalisation and development. With
the adoption of the Convention, the ideal of a post-liberal social
democracy returns to the agenda. In this sense the Convention has the
potential to also reanimate and deepen the original vision of
transformative constitutionalism in South African law.

3 Convention 189 and legal reform: The rights of

domestic workers restated

Article 3 of the Convention places a positive duty on ILO member states

to take measures to effectively protect and promote and respect and realise
the human rights of all domestic workers. This focus on the positive duties
of the state to regulate domestic work resonates closely with section 7(2) of
the South African Bill of Rights which requires the state to ‘respect,
protect, promote and fulfil the rights in the Bill of Rights’. Within the
context of a post-liberal understanding of right obligations, nearly every
specific right recognised and protected in the Convention has a counterpart
in the South African Bill of Rights. Most rights are elaborated in more
detail in the various employment statutes, which will be examined in
Chapter 3 below. At this point, however, the purpose is to demonstrate the
normative synergy between the two human rights documents at the most
basic level, as reflected in the following examples.

18 Mazibuko (n 16 above) 7.
 Advancing domestic workers’ rights in a context of transformative constitutionalism 39

3.1 Children, domestic work and education opportunities

Article 4 of the Convention requires the establishment of a minimum age

at which domestic work may be done and provides that where this age is
under the age of 18, domestic work may not deprive children employed in
domestic work of the right to basic education or interfere with further
education opportunities. Section 28(1)(f)(i) of the South African Bill of
Rights provides in similar terms that children under the age of 18 are not
permitted to perform work that is inappropriate for a person of that child’s
age, thus creating a minimum age requirement for domestic work, and
section 28(1)(f)(ii) prohibits any work that places the child’s well-being,
education or personal development at risk. This right must be read with
section 29 creating the right to receive free basic education and further
education.

The ILO adds in item 5(1) of the Recommendation that a list must be
compiled of types of domestic work that are likely to harm the health,
safety or morals of children. According to item 5(2) of the
Recommendation, domestic workers under the age of 18 may not perform
night work and must be given adequate time for rest, education and
training, leisure activity and family contacts.

3.2 Protection against abuse and assault

Article 5 of the Convention requires effective protection against all forms

of abuse, harassment and violence. Section 12 of the South African Bill of
Rights guarantees the right to freedom and security of the person, which
includes the right to be free from all forms of violence and not to be treated
in a cruel, inhuman or degrading manner. This right imposes a duty on the
state to establish an accessible complaint mechanism and to ensure that all
complaints are investigated and prosecuted.

3.3 Fair terms of employment and decent working conditions

Article 6 requires member states ‘to ensure that domestic workers, like
workers generally, enjoy fair terms of employment as well as decent
working conditions’ and article 10 requires ‘equal treatment between
domestic workers and workers generally’ in relation to conditions of
employment. These requirements correspond closely to the ‘right to fair
labour practices’ extended to all workers by section 23 of the Bill of Rights,
as discussed in more detail in Chapter 3 below.

3.4 Freedom of association and collective bargaining

Article 3(2)(a) of the Convention confirms the freedom of association and

right to collective bargaining as a basic human right at work. The first right
40 Chapter 2

is recognised in the Bill of Rights in general terms in section 18 and is

closely related to the right to peacefully assemble, demonstrate, picket and
present petitions. In the specific context of labour relations, section 23(2),
(4) and (5) protect the right to form and join a trade union and to
participate in its activities, including the right to strike and engage in
collective bargaining. The ILO understands these rights not simply as
preventing the state from banning workers’ organisations but sees them as
placing an obligation on the state to take supporting measures to
strengthen the capacity of both workers’ and employers’ organisations in
order to facilitate a more robust workplace democracy.19

3.5 Decent and private living conditions in the household

dwelling

Article 9 provides that domestic workers are free to decide whether to

reside in the household and, if they do so, to leave the household during
periods of daily or weekly rest or annual leave. Article 6 adds that domestic
workers who reside in the household must be provided with decent and
private living conditions. These provisions could be read as a clarification
of what the right to have access to adequate housing in section 26 of the
Bill of Rights might mean in the case of live-in domestic workers with no
other accommodation.

The same can be said of the right to spatial privacy of live-in domestic
workers under section 14 of the Bill of Rights or the right of domestic
workers not to have their person, property, communications or home
searched. The ILO recommends that, where accommodation is provided
by the employer, it should be in a separate, private room that is suitably
furnished, that can be locked, has access to sanitary facilities (shared or
private), adequate lighting and heating and that a domestic worker must be
given reasonable notice before she or he can be asked to vacate the
property.

3.6 Informed employment

Article 7 requires that domestic workers must be informed about the terms
and conditions of their employment, where possible through a written
contract of employment. This is a key requirement of fair labour practices
under section 23 of the Bill of Rights as well as the right to have access to
information held by a private person and needed for the protection of any
right under section 32(1)(b) of the Bill of Rights.

19 Art 2 of Recommendation 201.

 Advancing domestic workers’ rights in a context of transformative constitutionalism 41

3.7 Migrant domestic workers

The Convention contains a number of articles dealing with the position of

migrant domestic workers. The Bill of Rights does not include specific
equivalent provisions but the protection of migrant workers is implied in
the right to dignity and equality in section 9 of the Bill of Rights. This issue
is discussed in more detail in Chapter 6 below.

3.8 Payment

Article 12 of the Convention requires payment in cash at least once a

month or to a limited extent also in kind. Article 11 requires that a
minimum wage be determined and that payment must not discriminate
between the sexes. The right to be paid for work is implied in section 13 of
the Bill of Rights which provides that no one may be subjected to slavery,
servitude or forced labour, a minimum wage is implied in the right to fair
labour practices20 and equal pay as between female and male workers in
the right to equality laid down by section 9.

3.9 A healthy and safe working environment

Article 13 guarantees a healthy and safe working environment and a

progressive increase in the occupational safety of domestic workers. This
right overlaps with the right to fair labour practices in the Bill of Rights
(section 23) and the right to freedom and security of the person (section
12).

3.10 Social security protection

Article 14 provides that domestic workers must progressively enjoy social

security protection – including maternity benefits – not less favourable
than that applicable to workers generally. This is also provided for in more
detail in section 27 of the Bill of Rights. The issue is discussed in more
detail in Chapter 4 below.

3.11 Access to justice

Article 16 requires that domestic workers have access to courts and other
dispute resolution mechanisms not less favourable than that available to
workers generally. Article 17 elaborates on this right by requiring the
establishment of effective and accessible complain and compliance

20 Although there is no jurisprudence on the point, it is in practice taken for granted;

minimum wages are laid down administratively in sectors, such as the domestic work
sector, where no collective agreement is applicable: see Chapter 3 below.
42 Chapter 2

mechanisms, including labour inspections and penalties. A similar right is

created by section 34 of the Bill of Rights.

3.12 Privacy of the employer

Labour inspection of the domestic workplace is required by article 16 and

the right of domestic workers to effective dispute resolution mechanisms,
including the courts, but must in terms of article 17 be granted having due
respect for the privacy of the employer and his or her household.

The right to privacy of the employer is a complicating factor in the

design of effective enforcement mechanisms in the case of domestic work.
The same right is protected under section 14 of the Bill of Rights21 which
affords a domestic employer the right not to have his or her home or
property searched. The protection of the private property or home of the
employer implies a spatial conception of privacy. However, the
Constitutional Court has insisted that this spatial conception must be offset
by a relational concept of privacy which only protects intimate
relationships or associations from public scrutiny. The two conceptions
might often overlap, as happened in the case of S v Jordan & Others (Sex
Workers Education and Advocacy Task Force & Others as Amici Curiae)22 where
sex workers argued that the regulation of sex work violated their right to
privacy (in the spatial sense). However, because the relationship between
the sex worker and her sexual partner was commercial in nature and thus
not a private and intimate association, the Court held that if the right to
privacy was violated, that violation was not of a serious nature and easily
justifiable given the importance of regulating sex work. Similar
considerations might apply in the case of domestic work, especially in
cases where the domestic worker is employed on a live-in basis.

3.13 Equality in the workplace

Article 3(2)(d) confirms the fundamental right to the elimination of

discrimination in respect of employment. Recommendation 3 deals
specifically with the duty to prevent discrimination based on work-related
medical testing. It recommends that no domestic worker should be
required to undertake HIV or pregnancy testing, or to disclose HIV or
pregnancy status. Arrangements for work-related medical testing must
respect the privacy of the domestic worker and the confidentiality of
personal data. Similarly, section 9 of the Bill of Rights protects the right of
all persons not to be discriminated against unfairly on any ground
including HIV or pregnancy status.

21 As elaborated by the BCEA, sec 65, which is discussed more fully in Chapter 5 below.
22 2002 (11) BCLR 1117 (CC).
 Advancing domestic workers’ rights in a context of transformative constitutionalism 43

3.14 The work-life balance of domestic workers

Item 25 of the Recommendations proposes that member states should

address the work-life balance of domestic workers and ensure that
domestic work and the family responsibilities of domestic workers are
respected. Item 5(2)(a) requires that the working hours of child domestic
workers must be limited to ensure adequate time for family contact.
Section 28 of the Bill of Rights requires that the best interests of the child
must be considered and recognises that every child has a right to family
care. While the Bill of Rights does not explicitly include the right to be with
one’s family, section 28 gives children the right to parental or family care.
Furthermore, in Dawood & Another v Minister of Home Affairs & Others;
Shalabi & Another v Minister of Home Affairs & Others; Thomas & Another v
Minister of Home Affairs & Others23 the Constitutional Court distilled from
the right to dignity a right to be with one’s family.24

3.15 Food

Where food is provided to domestic workers as part of the employment

contract, item 17(d) of the Recommendation suggests that meals must be
of a good quality and a sufficient quantity, reasonably adapted to the
cultural and religious requirements of a domestic worker concerned. The
Bill of Rights recognises a right to sufficient food and water. The
Constitutional Court25 has stressed that this and other socio-economic
rights apply in a wide range of contexts and not simply as a constitutional
guarantee against starvation. Just as access to adequate housing must be
ensured for rich and poor, the right to sufficient food must also be given
content in the specific context of domestic employment. The Convention
provides valuable indications of how this concretisation of the right might
proceed domestically.

3.16 Application and limitations analysis

Most of the articles in the Convention contain internal qualifiers. The

standard formulation is that members must take appropriate measures ‘in
accordance with national laws and regulations with due regard for the
specific characteristics of domestic work’. Rights in Bill of Rights are
generally not subject to internal qualifiers and modifiers but all rights are

23 2000 (8) BCLR 837 (CC).

24 The Court held that certain immigration regulations violated an immigrant’s right to
be with his family.
25 Government of the Republic of South Africa & Others v Grootboom & Others 2001 (1) SA 46
(CC). See also S Woolman & M Bishop (eds) Constitutional Conversations (2008) 315-
316; UN Committee on Economic, Social and Cultural Rights General Comment 12:
The right to adequate food (Art 11 of the Covenant) (12 May 1999) http://www1.umn.edu/
humanrts/gencomm/escgencom12.htm (accessed 6 May 2013).
44 Chapter 2

subject to a general clause which allows rights limitations where the

limitation can be justified in line with the broader democratic project.26

The Convention rights and obligations must, in terms of article 18, be

implemented by member states through laws, regulations, agreements and
other measures. There is no claim that the rights in the Convention apply
directly in member states; it only applies indirectly through the mediation
of domestic law and regulations. The constitutional rights in the South
African Bill of Rights apply both directly (the Bill in general has horizontal
application) and indirectly (via legislation or the rules of common law).

3.17 An interim balance sheet

The analysis above reveals that there is a close synergy between the
individual rights in the South African Bill of Rights and the rights
contained in the Convention. However, the clause by clause comparison
undertaken above might be misleading because Conventions and Bills of
Rights are not interpreted in a clause-bound fashion, but must be read in
light of their animating values, themes or leitmotivs.

One of the key themes of the South African Bill of Rights has been said
to be the concomitant transformation of society, also referred to above as
‘social democracy’, encapsulated in its affirmation of ‘the democratic
values of human dignity, equality and freedom’.27 In the case of the rights
in the Convention, its Preamble provides the clue to the animating values
or leitmotiv behind the international recognition of domestic workers'
rights. It explains that the individual articles of the Convention should be
read as ‘proposals concerning decent work for domestic workers’ and that
the ideal of ‘decent work for all’ should in turn be understood in light of the
2008 ILO Declaration on Social Justice and a Fair Globalisation, on the
one hand, and other United Nations human rights instruments on the
other.

‘Decent domestic work’ thus emerges as a key not only to full

employment and social development in the sector but also to the ideal of
social justice and fair globalisation which may be likened to the ‘social
democracy’ contemplated by the South African Bill of Rights. However,
domestic work is often under-valued, invisible and open to abuse and
exploitation of women and children. To overcome this ‘decent work
deficit’ Convention 189 initially recognises domestic work as ‘work’ which
is, as such, subject to all the standard international and national labour law
instruments. However, it also acknowledges the limits of formal equality

26 Bill of Rights, sec 36.

27 Bill of Rights, sec 7(1). Sec 7(2) commits the state to ‘respect, protect, promote and
fulfil the rights in the Bill of Rights’, and sec 39(2) provides that ‘[w]hen interpreting
any legislation, and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of Rights’.
 Advancing domestic workers’ rights in a context of transformative constitutionalism 45

among workers. Domestic work differs from work in industrial settings

most obviously because of the unique household context in which it is
performed. The household setting requires specific labour standards
applicable to domestic workers to ensure substantively equal protection
among workers in the domestic sector and those outside it. While
substantive equality among workers thus drives the reform of domestic
work, the underlying ideal reflected in Convention 189 as well as the South
African Bill of Rights is substantive equality among all citizens. ‘Decent
work’ provides a link between social reform and democratic
transformation.

With this initial reading of the Preamble and the philosophy behind
the Convention in mind, it is now possible to proceed to explore whether
the ILO’s decent work agenda can shed new light on the South African
debate about the meaning of transformative constitutionalism. The
comparison relies heavily on two contributions by Darcy du Toit on the
proper way to frame or approach the contemporary domestic workers
rights debate in South Africa.28

4 Transformative constitutionalism

The South African Constitution can, without much controversy, be

described as transformative in the sense discussed in Chapter 1 (above). It
is often said that three features of the Constitution reveal its transformative
character. The first is the equality provision (section 9) which defines
equality as the full and equal enjoyment of all rights and freedoms, thus
mandating a holistic or integrated approach to the advancement of rights.
The second is the inclusion of social justice29 as a fundamental value of the
constitutional order and thus an anticipated redirection of state resources
in terms of section 7(2) over and above the protection of individual
freedoms. The third is the inclusion of a series of specific socio-economic
rights, such as the right to access to social security, and a positive
obligation on the state to take reasonable measures to progressively realise
these rights.30 These three features make it clear that the Constitution did
not simply preserve the status quo at the end of apartheid (a perverse idea)
but anticipated and mandated the large-scale material transformation of
post-apartheid society in an egalitarian direction.

There is no doubt that the South African Constitution is historically

self-conscious and that its fundamental purpose is to transform apartheid

28 D du Toit ‘Not “work like any other”: Towards a framework for the reformulation of
domestic workers’ rights’ (2011) 32 Industrial Law Journal 1; D du Toit ‘Extending the
frontiers of employment regulation: The case of domestic employment in South
Africa’ (2010) 14 Law, Democracy & Development 205.
29 The Preamble to the Constitution identifies its primary purpose as being to ‘establish a
society based on democratic values, social justice and fundamental human rights’.
30 See especially secs 24 and 26-29.
46 Chapter 2

society into a democratic society. It is widely accepted that South Africa’s

apartheid history required transformative social and economic rights in
order to prevent a neo-liberal Bill of negative rights from preserving an
unjust economic status quo.31 However, the idea of the Constitution as a
catalyst for social change is merely the beginning of a theory of
transformative constitutionalism. Different theories of transformative
constitutionalism might locate the driving force of change in different
branches of government (courts versus the legislature) and prefer different
mechanisms of change (rights interpretation versus legislation). These
differences might have a bearing on the nature and scope of the
transformation that is constitutionally mandated or achievable.

The discussion below begins with an analysis of three different

versions or models of transformative constitutionalism. As far as the value
of social justice is concerned, the second feature mentioned above, we
argue that Nancy Fraser's theory of social justice provides the best starting
point for a theory of transformative constitutionalism. After a discussion
of this theory, we turn to the recent work of Du Toit on the right to equality
as a means of further clarifying the meaning of transformative
constitutionalism. In Du Toit's contributions the paradigm of decent work
has gradually moved into the foreground as an alternative context for the
debate around the rights of domestic workers. This is an exciting
development as the paradigm of decent work and the paradigm of
transformative constitutionalism represent closely related alternatives to
the neo-liberal constitutionalism associated with the so-called Washington
Consensus of the late twentieth century. As we point out later, the decent
work paradigm reinforces important features of transformative
constitutionalism.

4.1 Understanding transformative constitutionalism

The claim that the South African Constitution is best understood as a

transformative constitution has become commonplace.32 This
conventional wisdom hides the fact that there is little agreement about
what this means and that it is possible and necessary to distinguish
between competing understandings of transformative constitutionalism.33
For our purposes it is useful to distinguish between three different models
of transformative constitutionalism, each associated with the work of a
distinguished constitutional law scholar. The first version is most

31 See generally S du Plessis ‘New tools for the Constitutional Bench’ in AJ van der Walt
(ed) Theories of social and economic justice (2005) 37-49.
32 See T Roux ‘Transformative constitutionalism and the best interpretation of the South
African Constitution: Distinction without a difference?’ (2009) 20 Stellenbosch Law
Review 258; Unger (n 2 above) 1.
33 Compare K van Marle ‘Transformative constitutionalism as/and critique’ (2009) 20
Stellenbosch Law Review 286 293, who distinguishes between ‘two trends in
engagements with transformative constitutionalism’. She calls these the ‘instrumental/
functionalist’ and the ‘critical’ trends respectively.
 Advancing domestic workers’ rights in a context of transformative constitutionalism 47

frequently associated with the work of Karl Klare34 and is best expressed,
according to Klare himself,35 in the judgment of the Constitutional Court
in Jaftha v Schoeman & Others; Van Rooyen v Stoltz & Others.36 The second
version is associated with the work of Cass Sunstein37 and is best
expressed, according to Sunstein himself,38 in the Constitutional Court
judgment in Government of the Republic of South Africa v Grootboom.39 The
third version is associated with the work of Nancy Fraser40 and has been
said is best expressed in the judgment of the Constitutional Court in Port
Elizabeth Municipality v Various Occupiers.41

It is impossible in the limited scope of this chapter to provide a

comprehensive overview of these three models. For our purposes that is
also not necessary. We wish to establish what it might mean to present the
realisation of domestic workers’ rights as a transformative project and
whether the idea of transformative constitutionalism still has enough
critical purchase to make it a meaningful point of departure. To that end
we have decided to inscribe our introduction to the various strands of
transformative constitutionalism in a loose narrative about the rise (Klare),
decline (Sunstein) and revival (Fraser) of transformative constitutionalism.
But before we begin this narrative, it is necessary to briefly indicate why the
idea of transformative constitutionalism appeared attractive to the
researchers who launched this project from the start.

There is an intuition that South Africa has done more towards the legal
regulation of domestic work than most other jurisdictions. The
constitutional right of domestic workers to fair labour practices appears to
be fully entrenched and protected through extensive labour legislation. In
spite of this fact, little has changed on the ground as far as the plight of
domestic workers is concerned. This suggests that the attempt to use the
discourse of labour rights to effect an important change in society has
failed. While it might be possible to overcome this failure, there is also the
nagging doubt that this failure might be inevitable, as the long tradition of
leftist critiques of the liberal rights discourse has argued. These critiques
rest on the idea that law is inevitably a strategy of preserving, codifying or
legitimising the status quo and that there is an inevitable synergy between
the commodity form and the legal form.42 This critique is the direct
opposite of the so-called ‘status quo neutrality’ claimed by liberal rights

34 KE Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South African

Journal on Human Rights 146.
35 KE Klare & DM Davis ‘Transformative constitutionalism and the common and
customary law’ (2010) 26 South African Journal on Human Rights 403.
36 2005 (2) SA 140 (CC).
37 CR Sunstein Designing democracy: What constitutions do (2001) 224-237.
38 Sunstein (n 37 above) 237.
39 n 25 above.
40 N Fraser & A Honneth Redistribution or recognition? A political-philosophical exchange
(2003).
41 2004 (12) BCLR 1268 (CC).
42 As outlined in the Introduction (above).
48 Chapter 2

discourses for the law. In the face of these longstanding critiques of rights-
based social movements, the idea of transformative constitutionalism held
a new promise. Here was a radical idea of law as a means of subverting,
dislocating and transforming the status quo which would give a rights-based
approach to the liberation of domestic workers, like other marginalised
groups, a prospect of success. For social movements and research projects
such as the present one this was and remains an important promise.

4.2 Karl Klare and the promise of transformative

constitutionalism

When Klare formulated the idea of transformative constitutionalism in

1998 he was essentially responding to an idea which Mahomed J expressed
in the judgment of the first case that served before the Constitutional
Court:43

In some countries, the Constitution only formalizes, in a legal instrument, a

historical consensus of values and aspirations evolved incrementally from a
stable and unbroken past to accommodate the needs of the future. The South
African Constitution is different: it retains from the past only what is
defensible and represents a decisive break from, and a ringing rejection of,
that part of the past which is disgracefully racist, authoritarian, insular, and
repressive and a vigorous identification of and commitment to a democratic,
universalistic, caring and aspirationally egalitarian ethos, expressly articulated
in the Constitution. The contrast between the past which it repudiates and the
future to which it seeks to commit the nation is stark and dramatic.

Klare fully accepted and embraced this description of the post-apartheid

Constitution. His concern was that courts would fail to develop the
adjudicative methods and interpretive techniques that are implied by a
transformative as opposed to a conservative view of law; in other words,
how existing legal culture (modes of reasoning and methods of
interpretation) may undermine the best transformative aspirations or
demands of the Constitution. He provided a rich definition of
transformative constitutionalism:44

By transformative constitutionalism I mean a long-term project of constitutional

enactment, interpretation, and enforcement committed … to transforming a
country's political and social institutions and power relationships in a
democratic, participatory, and egalitarian direction. Transformative
constitutionalism connotes an enterprise of inducing large-scale social change
through non-violent political processes grounded in law.

Transformative constitutionalism is used here in at least five

distinguishable senses. The terms respectively describe an optimistic

43 S v Makwanyane & Another 1995 (3) SA 391 (CC) para 261.

44 Klare (n 34 above) 150.
 Advancing domestic workers’ rights in a context of transformative constitutionalism 49

theory of social change through law (large scale; long term; court-centred);
a political morality or theory of justice (post-liberal; social-democratic or
participatory, caring and egalitarian); a model of rights (programmatic and
inter-connected); the best interpretation of the Constitution (teleological);
and an approach to legal method (post-realist). In practice he advocated
the transformation of post-apartheid society through rights litigation and
adjudication by pro-rights social movements and activist post-apartheid
courts.

Klare initially argued for this vision of the role and nature of judicial
power at a conference in January 1995,45 two weeks before the
Constitutional Court heard its first case. In the context of the mid-1990s his
idea of transformative constitutionalism presented an alternative to both
neo-liberal constitutionalism and the Washington Consensus, on the one
hand, and the sceptical critiques of a rights-based approach emanating
from the Critical Legal Studies movement on the other. Klare conceded
that his theory was demanding and unlikely to be realised, given the
conservative nature of South African legal culture. His reservation and
warning soon proved to be well founded.

4.3 Sunstein and the end of transformative constitutionalism

One would have assumed that, if there was one area of post-apartheid law
where the ideals of transformative constitutionalism could be realised, it
would be in the case of socio-economic rights. However, when the
Constitutional Court laid down the basis of the post-apartheid approach to
enforcement of these rights in the Grootboom case it was immediately clear
that they no longer had Klare's ideal of an activist judiciary in mind.
Supporters of Klare criticised the Court from the start for its failure to
engage with the substantive content of the right in question. A fellow
American legal scholar, Sunstein, responded by claiming that the
judgment presented a perfect example of transformative constitutionalism
in action. Sunstein's use of the term owed nothing to Klare's earlier article.
Sunstein was relying on a difference which Lessig suggested in the early
1990s between two types of constitutions or constitutional provisions:46

If the experience of post-Communist constitutionalism has taught us

anything, it has taught us that [there is] an important gap in constitutional
theory. For ordinarily we think of a constitution as an entrenching device. We
think, that is, that what a constitution is to do is entrench a certain way of
being. The image is of Ulysses and the mast: the idea is that we need a

45 Eg the Annual Judges’ Conference, organised by the Centre for Applied Legal Studies
at the University of the Witwatersrand, Johannesburg.
46 L Lessig ‘Postconstitutionalism’ (1995-1996) 94 Michigan Law Review 1422 1460-1461;
see also L Lessig ‘Reading the constitution in cyberspace’ (1996) 45 Emory Law Journal
1. Lessig suggested that the 1791 constitution was a codifying constitution, while the
civil war amendments were transformative provisions.
50 Chapter 2

constitution to bind us to our most important values; we need a way to restrict

ourselves from doing what in our more reflective mode we believe we
shouldn’t do. But this is not all that a constitution does. For sometimes a
constitution is designed not so much to preserve the status quo, as to change it.
Sometimes it is designed not to entrench a certain way of being, but to
dislodge it. This, for example, is what constitutionalism in post-Communist
Europe is about. The constitutions in post-Communist Europe are not
designed to entrench a certain social order, or way of being; they are designed
to change an order or way of being. Their aim is to remake a social order, to
change patterns of thought constructed by fifty or seventy years of
communism, and to change these habits of the heart into patterns that would
support constitutionalism … What should be obvious is that the techniques of
this transformative constitutionalism are not necessarily the same techniques
as the techniques of codifying constitutionalism. How a constitution codifies
certain practices of social life may well be different from how it sets up the
conditions for changing them. More importantly, techniques for codifying
practices of social life may well make impossible techniques for changing
them. Constitutionalism in general hasn’t thought enough about the
differences between these two kinds of constitutionalism, nor enough about
how to integrate them.

When he first discussed Grootboom and the justiciability of socio-economic

rights, Sunstein appealed directly to Lessig’s distinction between codifying
and transformative constitutions to characterise the post-apartheid
constitution, just as Lessig had described the post-communist
constitutions.47 Sunstein is usually associated with a strand of
republicanism that privileges the legislature as a forum of public
deliberation and reason. His celebration of judicial avoidance and
minimalism in Grootboom must be understood in this light. Sunstein
favoured a far less activist role for the courts than Klare. According to him,
the Court should show deference to the democratically accountable
branches of government (the legislature and executive) by leaving things
undecided as far as possible.

By 2001, when Grootboom was delivered, the South African

Constitutional Court had embraced this minimalist judicial ethic.48 The
restrained administrative law approach to the review of socio-economic
rights fitted perfectly with this model of constitutional democracy which
Sunstein branded ‘transformative constitutionalism’. It justified the
judicial enforcement of socio-economic rights in the face of the democratic
legislature on the basis of Ely's theory of ‘representation reinforcement’:49

The broader point here is that a constitutional right to shelter, or to food, can
strengthen the hand of those who might be unable to make much progress in
the political arena, perhaps because they are unsympathetic figures, perhaps

47 CR Sunstein ‘Social and economic rights? Lessons from South Africa’ University of
Chicago public law and legal theory working paper 12 (2001) http://
www.law.uchicago.edu/files/files/12.CRS_.pdf (accessed 12 December 2011).
48 See I Currie ‘Judicious avoidance’ (1999) 15 South African Journal on Human Rights 150.
 Advancing domestic workers’ rights in a context of transformative constitutionalism 51

because they are disorganized and lack political power. A socio-economic

guarantee can have an enduring function. It can do so in part by promoting a
certain kind of deliberation, not by pre-empting it, as a result of directing
political attention to interests that would otherwise be disregarded in ordinary
political life.

The Sunstein model of transformative constitutionalism prioritises socio-

economic rights but at the same time encourages courts to defer to the
legislature, as opposed to civil society, and state bureaucrats to design and
implement the strategies for change and poverty reduction. The Court's
apparent inability to act in order to bring about transformation is no longer
justified with reference to the determinacy of legal texts (‘the clear
language leaves no scope for any interpretation’) but with reference to a set
of political arguments based on separation of powers and institutional
capacity. For critics like Brand, this means the end to the transformative
use of rights in society:50

[T]he Court, in particular in its reliance on separation of powers logic to limit

and describe its review powers, technicises issue[s] of poverty, describing them
as questions that impoverished people themselves – as opposed to the state –
simply cannot engage with. In this way, I argue, the Court depicts
impoverished people as passive recipients of pre-determined services from the
state, rather than as active participants in the definition of their needs and in
the fashioning of appropriate ways in which to address them.

Brand's scepticism about the political value of rights-based approaches to

poverty eradication, even in the case of socio-economic rights which held
so much promise, is echoed in the disillusionment of the so-called new
social movements with the constitutional structures of the state, including
the judiciary, and the return to forms of political action and mobilisation
outside the constitutional framework. By focusing on the politics of needs
interpretation, Brand is joined by Liebenberg, who also argues that socio-
economic rights litigation disempowers political imagination and action.51

Even those who were not completely disillusioned with the ideal of
rights-based judicial activism suggested by Klare started tempering their
initial celebration after the Grootboom judgment. Roux, for example,
turned to political theory to argue that transformative adjudication is not

49 Sunstein (n 47 above) 13. The theory is said to have its origin in the question posed by
the US Supreme Court ‘whether prejudice against discrete and insular minorities may
be a special condition, which tends seriously to curtail the operation of those political
processes ordinarily to be relied upon to protect minorities, and which may call for a
correspondingly more searching judicial inquiry’: United States v Carolene Products Co
(1938) 304 US 144, 152 n 4.
50 JFD Brand ‘Courts, socio-economic rights and transformative politics’ Dissertation
presented in partial fulfilment of the degree Doctor of Laws, Stellenbosch University,
April 2009 140 http://scholar.sun.ac.za/ handle/10019.1/1333 (accessed 13 February
2013).
51 S Liebenberg ‘Needs, rights and transformation: Adjudicating social rights’ (2006) 17
Stellenbosch Law Review 5 18.
52 Chapter 2

always possible in young and unstable democracies;52 courts may be

forced to compromise pragmatically in order to secure their long-term
institutional survival. Tactical adjudication often displaces transformative
adjudication. This is precisely what had happened in Grootboom.

In light of these wide-spread concerns and critiques from people with

pro-poor commitments, and in light of the dominance of Sunstein's
conception of transformative constitutionalism, does it still make
rhetorical and theoretical sense to present the campaign for the
emancipation of domestic workers in post-apartheid South Africa as a
rights-based social movement in the spirit of transformative
constitutionalism? Would it not be better to abandon faith in law and to
join the new social movements in more direct forms of political protest and
mobilisation? Put differently, is it still possible to realise something of the
transformative potential which Klare originally saw in rights-based
approaches to social change?

Klare himself certainly feels that it is. In a recent restatement and

clarification of the basic tenets of transformative constitutionalism, Klare
and Davis revived the original agenda of transformative constitutionalism
as a critique of post-apartheid legal culture.53 Having reviewed a large
number of judgments from the post-apartheid apex courts, they concluded
that a transformative approach ‘has generated some of the finest judgments
of the South African courts under the new dispensation’.54

One of these judgments is Jaftha.55 The applicants were poor women

who lived in houses acquired through government subsidy. They defaulted
on small debts and their creditors obtained judgment against them,
attached their homes and sold them in execution. The Court ruled that the
applicant's right to have access to adequate housing was violated by the
execution process. Klare and Davis celebrate the case as a rights-based
transformation of contract law. According to them, it laid the foundation
of a new moral economy, grounded on the idea that interpersonal duties of
solidarity can take priority over market-outcomes. Redistributive
consequences flow from this approach, as ‘one South African was asked to
bear a loss because another South African was too poor to fulfil her
contractual obligations’.56

Note how the transformative reach of the right to have access to

adequate housing is immediately framed in national terms as a duty
between citizens. Note also that Klare and Davis themselves contrast their
transformative reading of the case with a narrower reading, according to

52 Roux (n 32 above).
53 Klare & Davis (n 35 above) 403.
54 Klare & Davis (n 35 above) 449.
55 n 36 above.
56 Klare & Davis (n 35 above) 488.
 Advancing domestic workers’ rights in a context of transformative constitutionalism 53

which the case simply seeks to temper the worst excesses of free contract
without purporting to inquire generally into the fairness of the market. On
this reading Jaftha takes the fairness and constitutionality of the market for
granted and thus takes the question of economic redistribution off the
table.57

Anticipating the rest of the discussion below, we could call the Klare
and Davis reading of Jaftha ‘transformative’, as they do themselves, and
the narrower reading ‘affirmative’. The difference between affirmation and
transformation is suggested by Fraser and plays a key role in her theory of
social justice.58 Sandra Liebenberg has recently turned to the work of
Fraser in order to sustain some of Klare's original optimism about the
potential of rights litigation as a means of social transformation.59 It is
proposed in this study to follow Liebenberg's lead and use Fraser's work to
develop a third version of transformative constitutionalism. It is this
version that could serve, in the face of more sceptical rights critiques, as the
key to unlocking the constitutional framework for the advancement of
domestic workers' rights.

Before the point gets lost, however, Fraser's concept of social justice
can also be used to expose the limits of the transformative reading of Jaftha
suggested by Klare and Davis. Fraser argues that a comprehensive theory
of social justice combines claims to (cultural) recognition, (socio-
economic) redistribution and (political) representation. The rights claim in
Jaftha is correctly understood by Klare and Davis as a claim to
redistribution. However, in reformulating the claim to redistributive
justice, Klare and Davis – inadvertently – exclude migrants and other non-
citizens from the scope of the principle (solidarity among South Africans).

It is, of course, possible to address this potential injustice by

reformulating a more inclusive redistributive principle to also include non-
citizens as subjects of socio-economic rights in the South African
Constitution.60 Seen from a representation perspective, however, this
would remain an affirmation of the nation-state as a frame of reference. It
is also possible to turn the rights claim by a migrant into a more radical
question of political exclusion and thus not to take the nation-state as a
neutral constitutional framework for granted. In the words of Fraser, this
attempt to re-frame the question would be a transformative strategy. In
order to clarify these points, we now turn to a more detailed discussion of
Fraser's theory of transformative constitutionalism.

57 Klare & Davis (n 35 above) 489.

58 Fraser & Honneth (n 40 above) 70-88.
59 Liebenberg (n 51 above).
60 As was done in Khosa & Others v Minister of Social Development & Others; Mahlaule &
Another v Minister of Social Development 2004 (6) BCLR 569 (CC).
54 Chapter 2

4.4 Fraser and the revival of transformative constitutionalism

Liebenberg remains optimistic about the transformative potential of socio-

economic rights litigation.61 She presents Fraser’s comprehensive theory
of social or democratic justice, and in particular Fraser's understanding of
programmatic social change, as the key to a third version of what it means
to describe the post-apartheid Constitution as a transformative
constitution. Liebenberg's reading of Fraser suggests that the project
initiated by Klare can be revived in a way that overcomes most of the
criticisms levelled against the Sunstein version of transformative
constitutionalism. The key element is the meaning of ‘social justice’ –
recall that the aim of the Constitution, according to its Preamble, is to
‘establish a society based on democratic values, social justice and
fundamental human rights’.

Social justice has three dimensions: recognition, distribution and

participation. It combines these three elements in the ideal of participatory
parity. Fraser's theory originated in the 1990s as an attempt to combine the
struggles for recognition associated with the rise of cultural politics and
multi-culturalism (feminism and the gay and lesbian movement) with
more traditional struggles for redistribution of wealth in society (socio-
economic justice and social equality). In addition to cultural equality and
social equality, she later added political equality as an element of social
justice. Political injustices, and overcoming them, involve a question of
framing. Who are the social actors among whom parity of participation is
required? In the past the answer was taken for granted: the citizens of the
nation-state. Today, it will be argued, the nation-state can no longer serve
as the frame for deciding claims made for recognition and redistribution.

The remedy for injustice is removing the impediments to participatory

parity or active citizenship. This means removing patterns of cultural value
that impede participatory parity at the level of misrecognition – cultural
stereotypes about women and the nature of domestic work, for example;
removing economic impediments to participatory parity on the level of
misdistribution (poverty alleviation); and removing political obstacles to
participatory parity on the level of misrepresentation and framing
(imposing a national frame of citizens versus undocumented migrants) on
what is decidedly a transnational phenomenon.

In order to explain how cultural, economic and political impediments

to social justice can be integrated into a single political strategy, Fraser
distinguishes between affirmative and transformative strategies. Affirmative
strategies aim to ‘correct inequitable outcomes of social arrangements
without disturbing the underlying social structures that generate them’.62

61 Liebenberg (n 51 above) 6-12.

62 Fraser & Honneth (n 40 above) 74.
 Advancing domestic workers’ rights in a context of transformative constitutionalism 55

Transformative strategies, by contrast, aim to ‘correct unjust outcomes

precisely by restructuring the underlying generative framework’.63

At the level of redistribution, the paradigmatic example of an

affirmative strategy is the social welfare state, which aims to correct
injustices on a redistributive level through income transfers and social
security. The aim is to increase the consumption share of the
disadvantaged, while leaving intact the underlying economic structure (the
market). Fraser warns that affirmative strategies – channelling aid to the
poor – without addressing the structures that generate poverty might end
up branding the disadvantaged as inherently deficient and insatiable,
always needing more and more. This could trap disadvantaged
beneficiaries of social welfare in a situation where the insult of disrespect
is added to the injury of deprivation. This can result in a depoliticised and
passive state dependency, the reduction of political idealism to rights
realism and political action to litigation (as Brand also argues).

By contrast, the classic example of a transformative strategy is

democratic socialism which seeks to change the underlying economic
structure that generates disadvantage. However, transformative strategies
have their own difficulties. The more abstract and structural concerns of
transformative strategies might be far removed from the immediate
concerns of the individual victims of injustice.

To overcome the difficulties respectively associated with purely

affirmative and purely transformative strategies, Fraser suggests that the
two be combined into what she calls ‘non-reformist reform’. The idea is to
ensure a link between short-term affirmative goals (personal rights-based
empowerment) and long-term transformative ideals (active post-national
citizenship or denizenship). This combined strategy relies on non-reformist
reforms or transformative affirmations. These strategies have a double
face: they combine the practicality of affirmation with the radical thrust of
transformation. The key to this combined strategy is the ability to successfully
reframe issues or to shift the terms of the debate.

The decent work paradigm might be understood as an attempt to

change the terms of the present debate from a labour law issue to an issue
of social justice or participatory citizenship. It attempts to reframe the
question of domestic workers from that of equality between workers to
equality between denizens. It reframes questions about work and the
labour law rights of domestic workers as questions about social justice,
equitable development, fair globalisation and, ultimately, about
participatory parity (dignity, equality and post-national citizenship).

63 Fraser & Honneth (n 40 above) 23.

56 Chapter 2

By the same token, the campaign for the rights of domestic workers
should aspire to be a transformative – as opposed to an affirmative –
constitutional or rights-based strategy in this sense. It must shift the terms
of the debate. This is only possible if the campaign is seen as being aimed
not at the normalisation or ‘mainstreaming’ of domestic worker's labour
rights, as Labour Minister Oliphant recently presented the significance of
the ILO Domestic Workers Convention, but as a case study in the meaning
of and precondition for active democratic or participatory citizenship.
Indeed, the problem that gave rise to the campaign was precisely the
realisation that the mainstreaming of domestic workers' labour rights
seemed to have failed as a transformative strategy.

Fraser's concept of social justice as a combination of claims to

recognition, redistribution and representation overlaps with key concerns
of the domestic workers’ campaign. In the domestic work context
questions of gender, class and nationality often overlap and reinforce each
other, as the economic exploitation of foreign or migrant women shows.
Transformative constitutionalism grounded in the constitutional value of
social justice must address each of these forms of injustice and the
intersection between them. To this end a variety of constitutional rights
can be utilised as transformative strategies. These rights might include the
rights to dignity and non-discrimination as the basis for claims to (cultural)
recognition; the rights to fair labour practices, protection against servitude
and various socio-economic rights as basis for claims to socio-economic
redistribution; and the right to freedom of association as the basis for
claims of political representation in the direction of post-national forms of
citizenship (denizenship).

We thus argue that social justice within the sphere of domestic work
has to address issues of recognition (dignity, non-discrimination and the
social construction of work and gender; the project must assist domestic
workers to challenge their misrecognition as workers), issues of
redistribution (access to decent work; the project must assist domestic
workers to challenge the injustice of poverty) and representation (not
framing and addressing the issue as a migrant worker issue from the
perspective of the state; the project must assist domestic workers, including
undocumented migrants, to challenge the injustice of misrepresentation
and denying them a political voice or a means of challenging their
illegality). It is only on this basis that the campaign can claim to work
within a paradigm of transformative constitutionalism as understood by
Fraser.
 Advancing domestic workers’ rights in a context of transformative constitutionalism 57

4.5 Hepple and a sociological reservation about the

transformative impact law can have on society

Bob Hepple relies on Ehrlich's understanding of the gap between legal

doctrine and ‘living law’,64 as updated by Luhmann's systems analysis of
law,65 to discuss the limits of law as an instrument of social change – read
‘the limits of transformative constitutionalism’.66 From this perspective
society is not structured hierarchically but consists of a number of sub-
systems. Law as a sub-system can adapt to other sub-systems, or the other
way round. This view of society results in a model of reflexive law which
does not regulate society by imposing and enforcing new substantive
norms (so-called ‘command and control’). Law has the best chance to
infiltrate other sub-systems when it moves away from substance to
procedure or process (from ‘regulation’ to ‘negotiation’).

This suggests a new form of normative or traditional legal regulation;

a shift from rules to principles or values and standards which leave room
for negotiation; a shift from logic to dialogic. Hepple sees it as an
alternative to the ‘punitive command and control mode’67 in which
increasingly specific and prescriptive norms, and increasingly high
penalties, are often used as the default. He uses the terms ‘reflexive law’ or
‘reflexive regulation’68 or, following Braithwaite, ‘responsive law’,69 and
proposes this as a model for the legal regulation of society in general,
which would include the legal regulation of the domestic workplace.

Reflexive regulation is essentially a version of self-regulation or

internal critique that involves the subjects of regulation as participants in
the regulatory process. It is thus also a model of regulation adapted to the
demands of participatory democracy. This ensures greater compliance
because norms are generated and internalised dialogically and not simply
imposed from outside. Hepple argues that the ‘proceduralisation’ of socio-
economic rights under the South African Constitution should be
understood as an attempt, albeit a rather unsuccessful one, to adopt this
model of reflexive regulation.70 The aim is to make the delivery of socio-
economic goods more flexible by allowing the parties involved to set
priorities and give content to the open-ended substantive obligations that
these rights involve. The outcome of the process, rather than traditional
‘command and control’ obligations, is what Hepple calls ‘transformative

64 E Ehrlich Fundamental principles of the sociology of law (1936), a translation of

Grundlegung des soziologie des rechts (1913).
65 N Luhmann Law as a social system (2004).
66 References below are to B Hepple ‘Negotiating social change in the shadow of the law’
(2012) 129 South African Law Journal 248.
67 Hepple (n 66 above) 265.
68 As above.
69 J Braithwaite Regulatory capitalism: How it works, ideas for making it better (2008) 163; and
see discussion in part 7 of Chapter 1 (above).
70 Hepple (n 66 above) 249.
58 Chapter 2

obligations’. This refers to a different kind of obligation or normativity, in

line with the idea that transformation means not only living under different
laws but living differently under the law. In the context of regulation,
which Hepple distinguishes from litigation, the aim of transformative
obligations is to change organisations. The limits of litigation (courts) to
determine the substance of norms means that the Court turned to processes
of democratic engagement.71

Responsive regulation entails active responsibility of all stakeholders

and ‘negotiation’ between them. ‘Negotiation’ is a key term in Hepple's
model and is understood as an example of deliberative democracy – as
opposed to instrumental or interest-group democracy – in action. This
means that ‘negotiation’ is not understood as a power struggle in which the
stronger party can dominate the weaker party. Negotiation as a transformative
process is not the same as interest bargaining; engagement in disputes about
transformative obligations primarily means

a process of exchange of information and learning about the parties'

respective positions, leading to a better understanding of the issues, followed
by persuasion based on reasoned argument, with a view to reaching
agreement.72

The crucial point is not that a model of determinate rules is replaced with a
model of indeterminate negotiation (even in this demanding normative or
transformative sense).73 Both parties deliberate with a willingness to be
persuaded. This is also more than consultation.

From this perspective transformative constitutionalism is an approach

to law which uses law as an instrument of social change or transformation
by facilitating the self-modulating dialogue of citizens (the focus being on
process and soft substantive norms). The emphasis shifts from the content
of rights and norms to the form of law and the processes of interaction and
negotiation it enables.

In the present context this raises the question of how Convention 189,
and the applicable law in general, understands the domestic work
environment and seeks to engage employees and employers in a
transformative dialogue.

71 Port Elizabeth Municipality v Various Occupiers (n 41 above) is seen as the watershed case.
72 Hepple (n 66 above) 270.
73 Hepple's model of transformative regulation has close similarities with Michelman's
model of law as transformative medium in society and Kant's model of reflexive as
opposed to determinate judgment. For a recent discussion of Michelman’s work, see
G Calabresi et al ‘In tribute: Frank I Michelman’ (2011-2012) 125 Harvard Law Review
879.
 Advancing domestic workers’ rights in a context of transformative constitutionalism 59

5 Transformative constitutionalism and equality in

the workplace

Du Toit's understanding of the advancement of domestic workers rights

does not explicitly employ the terms and distinctions suggested by Fraser
but is fully aligned to the third understanding of transformative
constitutionalism suggested above. He argues that South African labour
legislation formally provides domestic workers with most of the core
protections required by international labour law and standards: ‘[l]abour
law, it might be said, has done everything that is conventionally expected
of it’.74 In spite of this, substantive inequality between domestic workers
and their employers continues to exist. According to Du Toit, a full decade
after Sectoral Determination 7 became operative the impact of this
regulatory framework can at best be described as ‘limited and uneven’.75
In the language of transformative constitutionalism developed above, the
focus on labour law rights has at best had an affirmative impact in its
context as opposed to a broader transformative impact. The challenge,
from the perspective of transformative constitutionalism, is how to convert
the campaign for domestic workers rights from an affirmative to a
transformative strategy. Du Toit suggests that the answer lies in a proper
transformative understanding of the right to equality as the link between
workplace and society, or between the individual as worker and as
citizen.76

According to Du Toit, the right to equality can have a bearing on the

empowerment of domestic workers in one of two ways. Relying on the
work of Shireen Ally,77 he suggests that one of the reasons why a standard
labour law approach to domestic work is doomed to lack transformative
effect is because this approach often relies on the ideal of formal equality
among workers. Because domestic work is simply regarded as ‘work like
any other’, the domestic or intimate nature of the domestic employment
relationship is often forgotten.78 As a result, the duty of the state to protect
the rights of domestic workers often translates into a paternalistic
enforcement of rights on behalf of those perceived as politically
disempowered victims – repeating a pattern often ascribed to the state by
critics of the welfare state, as we saw above in the discussion of the
Sunstein model of transformative constitutionalism.

Du Toit points out how the mainstreaming of domestic workers' rights

can nevertheless assume the character of non-reformist reform if the idea

74 Du Toit (n 28 above) 7.
75 Du Toit (n 28 above) 223.
76 Du Toit (n 28 above) 4-6.
77 S Ally From servants to workers: South African domestic workers and the democratic state
(2010).
78 Du Toit (n 28 above) 12-14.
60 Chapter 2

of substantive quality, rather than formal equality, guides the process.79

Substantive equality requires that domestic workers must be treated and
regulated differently because of the unique nature of domestic work.
However, the proposal entails much more than merely a set of special
labour law rights for domestic workers. The aim of a rights-based approach
to domestic work must be to ‘empower domestic workers in the actual
situation in which they find themselves ? that is, seeking to assert their
rights and negotiate conditions in a one-to-one relationship’.80 In this
context, the domestic worker cannot simply rely on the two classic
elements of labour law, collective bargaining and subjective labour rights,
as means to vindicate claims to social justice. Respect for the dignity of the
domestic worker as a person and an equal citizen of society is directly
implicated. So is a series of closely related rights beyond the right to fair
labour practices. What needs to be addressed is the underlying causes of
the so-called ‘decent work deficit’ – or, in the language of transformative
constitutionalism, the axes of social justice and injustice that intersect at
precisely this point: recognition (the low esteem in which domestic work
and workers are held; the gender bias), distribution (economic
exploitation) and representation (the undocumented status of many
domestic workers). Du Toit insists that the failure of workplace regulation
to address the plight of domestic workers is directly related to the lack of
social justice in society beyond the domestic workplace:81

Disregard of legal requirements in the domestic employment sector feeds on a

‘supply side’ of vulnerable people driven to submit to exploitation by poverty
and unemployment. Any serious effort to eradicate such exploitation … must
ultimately be understood as part of the broader programme of social transformation
mandated by the Constitution, including poverty alleviation, relevant education
and training, and the extension of social services.

A transformative, rights-based approach to the regulation of domestic

work would thus not simply take the right to fair labour practices as a
starting point. In addition to the importance which Du Toit attaches to the
right to substantive equality, such an approach would be directly
concerned with a series of other rights which define active citizenship such
as the right to dignity (the basis of the politics of recognition), housing,
social security, of access to courts and to freedom of association.

6 Transformative constitutionalism and decent

work

The answer to the question posed above – how to convert the affirmation
or mainstreaming of labour rights into a transformative strategy – therefore

79 Du Toit (n 28 above) 15.

80 Du Toit (n 28 above) 16.
81 Du Toit (n 28 above) 224 (emphasis added).
 Advancing domestic workers’ rights in a context of transformative constitutionalism 61

depends on the way in which the regulation of working conditions within

households is integrated with other dimensions of social empowerment
and transformation on which it is contingent (recognition, redistribution
and representation).

This is precisely what the decent work paradigm seeks to achieve. It

sees decent work as key to human development and democratic
citizenship. Decent work includes but transcends a labour law concern
with basic conditions of work and seeks to link the right to fair labour
practices to a more holistic network of mutually reinforcing social, civil
and political rights. A former Director-General of the ILO explains it as
follows:

The goal of decent work is best expressed through the eyes of people. It is
about your job and future prospects; about your working conditions; about
balancing work and family life, putting your kids through school or getting
them out of child labour. It is about gender equality, equal recognition, and
enabling women to make choices and take control of their lives. It is about
your personal abilities to compete in the market place, keep up with new
technological skills and remain healthy. It is about developing your
entrepreneurial skills, about receiving a fair share of the wealth that you have
helped to create and not being discriminated against; it is about having a voice
in your workplace and your community. In the most extreme situations it is
about moving from subsistence to existence. For many, it is the primary route
out of poverty. For many more, it is about realizing personal aspirations in
their daily existence and about solidarity with others. And everywhere, and
for everybody, decent work is about securing human dignity. But to bridge
reality and aspiration, we need to start by confronting the global decent work
deficit. It is expressed in the absence of sufficient employment opportunities,
inadequate social protection, the denial of rights at work and shortcomings in
social dialogue. It is a measure of the gap between the world that we work in
and the hopes that people have for a better life.82

It is this paradigm that permeates Convention 189 of 2011. The Preamble

introduces the Convention as ‘proposals concerning decent work for
domestic workers’ aimed at achieving social justice in an era of
globalisation. It goes on to present domestic work as valuable but
undervalued. Domestic workers are depicted not only as workers in the
general sense of the term, but as workers who do work of a unique kind and
therefore require specific standards adapted to the domestic work
environment ‘so as to enable them to enjoy their rights fully’.

The tension between formal and substantive equality runs like a golden
thread through the Convention. A series of rights refer to the rights of
‘workers generally’ but then seek to supplement the general standard
applicable to all workers with specific added protection in the case of

82 International Labour Organisation (ILO) Report 1(A) ‘Report of the Director-

General: Reducing the decent work deficit – a global challenge’.
62 Chapter 2

domestic workers. Article 10 captures this desire to place domestic workers

and other workers on an equal footing without compromising the special
protection required by domestic workers by providing that ‘[e]ach member
[state] shall take measures towards ensuring equal treatment between
domestic workers and workers generally ... taking into account the special
characteristics of domestic work’.

There is no doubt that the mainstreaming of domestic work as work

motivated the Convention. The Convention is the culmination of a process
which the ILO itself described a year previously as a move from status to
rights.83 Others have captured the movement away from a quasi-feudal
‘master and servant’ hierarchy in similar terms. Ally speaks about a shift
from ‘servants to workers’. On this basis the Convention recognises the
‘human rights of domestic workers’ that are discussed in part 3 of this
chapter. However, it is not the enumerated rights that capture the essence
of the Convention. Rather, it is the ideological momentum behind the
Convention reflected across a broad spectrum, echoed in the call for a so-
called ‘Geneva Consensus’84 aimed at ‘humanising globalisation’
expressed by the World Trade Organisation (WTO).85 The Convention as
a whole, and the rights specifically recognised by it, stand to be interpreted
in light of this ideological momentum and its fundamental principles and
values, most notably decent work, social justice and fair globalisation. The
decent work paradigm moves significantly beyond the protection of fair
labour practices by linking work with the broader idea of social justice and
equitable human centred and participatory development of society. In
short, the decent work paradigm links work with questions of development
and citizenship.

The real question is thus not so much whether the regulation of

domestic work in post-apartheid South Africa complies with or could be
made to comply with the rights in the Convention – which it no doubt
easily could – but whether South Africa can align its development policy
with the principles of the new ‘social justice consensus’ reflected in the
Convention. The regulation of domestic work in general, and the
Convention in particular, have assumed symbolic significance as
indicators of a commitment to the underlying values of the decent work
paradigm.

The present study must be understood against the same background.

Following Convention 189, it sets out to explore the supposition that the

83 International Labour Organisation (ILO) Decent work for domestic workers Report IV(1),
International Labour Conference, 99th Session, Geneva (2010) at 12ff.
84 In contrast to the ‘Washington Consensus’ of the late 1980s: see Chapter 1, (n 40
above).
85 Director-General P Lamy of the WTO started using this term in 2006; see, for
example, ‘Making trade work for development: Time for a Geneva Consensus’ Emile
Noel Lecture New York University Law School, 30 October 2006 http://
www.wto.org/english/news_e/sppl_e/sppl45_e.htm (accessed 14 February 2013).
 Advancing domestic workers’ rights in a context of transformative constitutionalism 63

gap between affirmation of domestic work as work within the labour law
context and social justice for domestic workers can be bridged through the
decent work paradigm, as interpreted above. This implies that the
affirmation of labour rights can no longer be divorced from the role
ascribed to work within a developmental paradigm. Within the South
African legal context it uses the framework of transformative
constitutionalism as a basis for pursuing this exploration. While
recognising that this is a contested concept which encapsulates a variety of
meanings, it subscribes to the idea of ‘non-reformist reform’ advocated by
Fraser as a strategy of social change through rights-based interventions,
including litigation. As a political morality it resonates with the decent
work paradigm and gives direction to the highly practical questions
addressed in the chapters that follow.
 3
CHAPTER
IMPLEMENTING DOMESTIC
WORKERS’ LABOUR RIGHTS
IN A FRAMEWORK OF
TRANSFORMATIVE
CONSTITUTIONALISM

Darcy du Toit and Elsabé Huysamen

[P]aid domestic work remains virtually invisible as a form of

employment in many countries. Domestic work does not take place in
a factory or an office, but in the home. The employees are not male
breadwinners, but overwhelmingly women. They do not work
alongside other co-workers, but in isolation behind closed doors.
Their work is not aimed at producing added value, but at providing
care to millions of households. Domestic work typically entails the
otherwise unpaid labour traditionally performed in the household by
women. This explains why domestic work is undervalued in
monetary terms and is often informal and undocumented. It tends to
be perceived as something other than regular employment, as not
fitting the general framework of existing labour laws despite the fact
that its origins go back to the ‘master-servant’ relationship. As a
result, the domestic employment relationship is not specifically
addressed in many legislative enactments, thus rendering domestic
workers vulnerable to unequal, unfair and often abusive treatment.1

1 Introduction

In 2010 the International Labour Organisation (ILO) estimated that there

were, at a minimum, 52.6 million documented domestic workers
worldwide.2 When including undocumented3 workers, a more accurate

1 International Labour Organisation (ILO) Decent work for domestic workers Report IV(1)
to the International Labour Conference, 99th session, Geneva (2010) 1 (ILO Report)
http://www.ilo.org/wcmsp5/groups/public/@ed_norm/@relconf/documents/meet
ingdocument/wcms_104700.pdf (accessed 21 February 2013).
2 C Bonner & D Spooner (eds) The only school we have: Learning from organizing experiences
across the informal economy Women in Informal Employment Globalising and
Organising (Wiego) (2012) 28.
3 Undocumented as used in the present context is regarded as workers engaged in
domestic work activities, but for whom there are no official obtainable employment
records, such as, employment contracts, registration for Unemployment Insurance in
terms of relevant legislation, no tax record or registration with the South African
Revenue Service (SARS), etc.

65
66 Chapter 3

figure is estimated to be in the region of 100 million.4 In many countries,

however, domestic work falls beyond the scope of regulation and scrutiny.
Consequently many workers remain hidden in private households, for all
intents and purposes ‘invisible’,5 in many cases undervalued, poorly paid,
and subject to harsh and unsatisfactory working conditions.6

The low social status and undervalued nature of domestic work stem
from a variety of factors. In the United States of America, as in South
Africa, it has roots in the historical use of specific racial and cultural groups
as servants and slaves.7 In the USA following the abolition of slavery, for
example, domestic work came to be regarded as a ‘labour of love’
performed only by women, which carried no real economic value and fell
‘outside the boundary of the world's economy’.8 Similar conditions and
perceptions persisted in South Africa until comparatively recently.9
During most of the apartheid era domestic workers in South Africa were
entirely excluded from the protection of the laws governing labour
relations, minimum working conditions and minimum wages.10

This changed with the advent of democracy and the introduction of a

rights-based constitutional order in 1994. An integrated system of law,
with supporting institutions, was created to protect the interests of all
employees, regardless of race, gender or occupation.11 Interwoven with
other basic rights guaranteed by the Constitution and regulated by a range
of statutes falling beyond the scope of this study, this system of law
comprises employment and labour legislation as well as social security
legislation.12 The effect is that domestic workers are now protected by the

4 Bonner & Spooner (n 2 above) 28.

5 Human Rights Watch ‘Swept under the rug: Abuses against domestic workers around
the world’ (July 2006) 18 2 http://www.humantrafficking.org/publications/446
(accessed 11 December 2012).
6 Bonner & Spooner (n 2 above) 28.
7 H Shah & M Seville ‘Domestic worker organizing: Building a contemporary
movement for dignity and power’ (2011-2012) 75 Albany Law Review 413 416.
8 Shah & Seville (n 7 above) 416-417, citing TL Banks ‘Toward a global critical feminist
vision: Domestic work and the nanny tax debate’ (1999) 3 Journal of Gender, Race and
Justice 1 7.
9 For a seminal study of domestic work in South Africa at the height of the apartheid
era, see J Cock Maids & madams: A study in the politics of exploitation (1980), republished
as Maids and madams: Domestic workers under apartheid (1989).
10 Sec 2(2) of the Labour Relations Act 28 of 1956 (LRA), sec 1(2)(c) of the Basic
Conditions of Employment Act 3 of 1983 (former BCEA) and sec 2(2) of the Wage Act
5 of 1957 expressly excluded persons ‘in domestic service in private households’ from
their application.
11 See the definition of employee in sec 213 of the LRA, sec 1 of the Basic Conditions of
Employment Act 75 of 1997 (BCEA), and sec 1 of the Employment Equity Act 55 of
1998 (EEA). There are very limited exceptions; eg, the military and security services,
which are subject to separate legislation: see sec 2, LRA and sec 3, BCEA.
12 J Botero et al ‘The regulation of labor’ National Bureau of Economic Research
Working Paper 9756 (2003) 1 http://www.nber.org/papers/w9756 (accessed 26 June
2013). ‘Employment law’ conventionally refers to the individual employment
relationship between employer and employee while ‘labour law’ also covers collective
or industrial relations between employers and workers, including collective bargaining
and industrial action.
 Implementing domestic workers’ labour rights within transformative constitutionalism 67

same labour laws which apply to all employees and are subject to the same
legal regime that governs all other workers.

In a world where only about 10 per cent of all domestic workers are
covered by labour laws to the same degree as other workers and 30 per cent
have no legal protection at all,13 this must be seen as a distinctly
progressive step. However, as we have noted, it also brought problems of
its own. An abiding criticism of the regulation of domestic workers’ rights
is the mismatch between the unique and intimate nature of domestic work,
on the one hand, and the laws, regulations and institutions of general
application that govern all employment relationships. Indeed, the
exclusion of domestic workers from certain specific legislative provisions,
and the introduction of a special Sectoral Determination for the domestic
worker sector (SD 7),14 underline the uniqueness of domestic work and the
need for a specialised regulatory regime of a comprehensive nature. This
chapter begins to explore the form that such a regime may take.

It starts by considering the intimate nature of domestic work, the

reasons for the inability of the existing legal regime to address it adequately
and the limits of law as an instrument of change. Thereafter it unpacks the
paradigm developed in Chapter 2, based on the intersection of a
transformative interpretation of the Constitution (‘non-reformist reforms’)
with the notions of ‘decent work’, as reflected in ILO Convention 189, and
reflexive legislation, as a means of constructing a conceptual framework
for the regulation of the domestic work sector. The existing legislation is
then tested against this framework and, in conclusion, ways and means of
addressing its shortcomings are considered in light of international
precedent.

Chapter 4, dealing with social security rights of domestic workers, and

Chapter 5, dealing with the enforcement of domestic workers’ rights,
should be read in conjunction with this chapter in order to contextualise
the questions discussed below. As repeatedly emphasised, however, the
Bill of Rights and the idea of decent work both go well beyond the area of
labour and employment rights, and there are further aspects of the rights of
domestic workers as citizens which may be adversely affected by their
employment status. Although these questions are no less deserving of
investigation, it is unfortunately impossible to do more than

13 International Labour Office Domestic workers across the world: Global and regional statistics
and the extent of legal protection (2013) 50.
14 Sectoral Determination 7: Domestic Worker Sector (SD 7), published in Government
Gazette 23732 of 15 August 2002 http://www.info.gov.za/view/Download
FileAction?id=63829 (accessed 7 December 2012). Chapter 8 of the BCEA authorises
the Minister of Labour to issue sectoral determinations which regulate terms and
conditions of employment in sectors not covered by bargaining council agreements. In
practice these are the sectors in which employees, and often employers, are too poorly
organised to engage in effective collective bargaining. SD 7 came into effect on 1
September 2002.
68 Chapter 3

acknowledging them within the limits of the present study and signalling
them as areas for further research.

2 The intimate nature of domestic work and its

regulatory implications

The present regulatory framework implicitly treats paid domestic work as

a form of work like any other. As argued below, this is an understandable
response to the fact that ‘paid domestic work is distinctive not in being the
worst job of all but in being regarded as something other than
employment’.15 However, the reality is that domestic workers are not just
like all other workers. In recognising the unique nature of domestic work
the ILO has quite fittingly described domestic work as ‘work like any
other; work like no other’.16

In laying a basis for discussion of the regulation of domestic it is

important to unpack of its ‘intimate’ nature.17 It is not intimacy alone that
makes domestic work unique; there are other forms of intimate working
relationships. What sets it aside is way in which its intimacy arises. First,
it is carried out in private homes and within the private lives of household
members,18 thus creating a highly personal relationship between the
worker and employer.19 In addition to the physical environment in which
work is to be carried out, moreover, the nature of domestic work and
certain duties that domestic workers fulfil, such as child care, often create
close emotional bonds between the worker and the family for whom she is
working.20 Domestic workers may know more about the lives of family
members than other members of the family themselves might know.21 It is
not uncommon for domestic workers to overhear family arguments, at
times perhaps even forming part of family conflict, or being the first to
discover family secrets.22 This gives domestic work a quality of intimacy
that no other occupation possesses, with a number of implications that are
relevant from a regulatory perspective.

Most obviously, the location of the workplace in the private home

creates problems of enforcement, as discussed in Chapter 5 below. But
even before the question of enforcement arises, the intimacy of domestic
work has aspects which are at odds with the conventional model of

15 P Hondagneu-Sotelo cited in S Ally From servants to workers: South African domestic

workers and the democratic tate (2010) 3.
16 ILO Report (n 1 above) 13.
17 The discussion that follows owes much to the analysis developed by Ally (n 15 above).
18 Ally (n 15 above) 13.
19 Ally (n 15 above) 95.
20 Ally (n 15 above) 13. As one domestic worker put it: ‘I love the children … I can
honestly say that I have a deep love for them. Even more than their parents’: Ally (n 15
above) 96.
21 Ally (n 15 above) 96.
22 Ally (n 15 above) 97-98.
 Implementing domestic workers’ labour rights within transformative constitutionalism 69

employment regulation reflected in the LRA, BCEA and EEA. One such
aspect has already been alluded to; it is captured in ideologies that
construct a domestic worker as ‘one of the family’, and social ideologies
that refuse to recognise domestic work as ‘real’ work, thus militating
against domestic workers’ understanding of themselves as workers like
others.23 Including domestic workers in the coverage of standard labour
law, as in South Africa, contradicts this ideology but does not
automatically do away with it or undo its effects. This study assumes that
a regulatory framework for domestic work must find ways of doing so in
practice.

Another aspect of the intimacy of domestic work may be seen as

empowering and disempowering at the same time. Some domestic
workers argue that they have used the intimate nature of their work to their
advantage through cultivating the relationship with their employers to
produce a specific work culture.24 Having been denied effective legal
protection, domestic workers used this mechanism to have input into and,
where possible, informally regulating their work and working
conditions.25 This process has echoes of the contract of employment to the
extent that the worker and the employer tacitly 'negotiate’ what amounts
to terms and conditions of employment.

Self-regulation of this nature, however, can ultimately be

disempowering. Workers in highly unequal relationships may be
understandably reluctant to risk their tenuous but concrete advantages in
exchange for the uncertainties of intervention by remote state officials, a
strategy unlikely to offer them day-to-day protection but threatening to
destroy their relationships with their employers.26 Ironically, workers may
thus be suspicious of measures for their own legal protection. At the same
time there is widespread hostility among employers to the enforcement of
labour legislation in the privacy of the home, which is conceptualised as a
‘safe haven’ for family members, thereby rendering regulation from the
outside inappropriate.27 The ILO has noted the slow change by
governments worldwide in addressing the working conditions of domestic
workers often being excused on the basis of the principle of non-
intervention in private households.28

23 As reflected in the statement by a domestic worker: ‘I work in a family, not for a

family’: Ally (n 15 above) 96. See also S Ally ‘Caring about care workers: Organizing
in the female shadow of globalisation’ (2005) 38 Labour, Capital and Society 185 http://
www.lcs-tcs.com/PDFs/38_12/Ally.pdf (accessed 18 May 2013).
24 Ally (n 15 above) 103.
25 Ally (n 15 above) 95-96.
26 Ally (n 15 above) Chapter 4.
27 MA Chen ‘Recognizing domestic workers, regulating domestic work: Conceptual,
measurement, and regulatory challenges’ (2011) 23 Canadian Journal of Women & the
Law 167 180.
28 ILO Organizing for social justice: Global Report under the follow-up to the ILO Declaration on
Fundamental Principles and Rights at Work (June 2004) para 163.
70 Chapter 3

In fact, there is evidence that many homes are neither a fair nor at
times a safe, working environment for domestic workers.29 The intimacy
of domestic work creates an uncommon or curious relationship within
which familiarity, and intimacy may co-exist with distancing,
estrangement and even dehumanisation.30 Appropriate regulation needs
to find a balance between these various aspects: between householders’
right to privacy and workers’ right to protection, while reinforcing
domestic workers in their ability to negotiate terms and conditions with
their employers rather than jeopardising or substituting it.

This is perhaps the most fundamental problem that Ally sees in the
current regulatory framework in South Africa: having characterised
domestic workers as being too ‘vulnerable’ to act in their own interests, the
state takes their ‘defence’ upon itself.31 Protective regulation of this nature,
however, is criticised as being ‘paternalistic’32 and a vehicle for the
disempowerment of domestic workers, rather than as a form of power
itself.33 By stepping in to act on the domestic workers’ behalf the state is
ignoring their capacities and practices of power, reinforcing their
dependent status and reflecting ‘insensitivity to the specificities of paid
domestic work as an intimate form of labour’.34 Responsive regulation
should be consciously modelled to avoid such insidious forms of
disempowerment.

3 Is legal regulation the whole answer?

The study of labour market regulation focuses on the use of law to achieve
the goals of social policy.35 The unique circumstances of domestic work
and the relative ineffectiveness of conventional forms of labour legislation
in the sector suggest that a broader approach is needed. Indeed, this is true
not only in the domestic sector or other sectors where informal work is
prevalent. As discussed in Chapter 1 (above), the challenges faced by
labour law in the era of globalisation permeate every sector of the
economy. In many countries existing labour law, although formally
applicable to all employees, in practice serves to provide higher standards
of protection to fewer workers, thus inadvertently placing them at
competitive risk.36 There is evidence of similar contradictions arising from

29 E Albin & V Mantouvalou ‘The ILO Convention on Domestic Workers: From the
Shadows to the Light’ (2012) 41 Industrial Law Journal 67 (forthcoming).
30 Ally (n 15 above) 98.
31 Ally (n 15 above) 12, 110ff.
32 Ally (n 15 above) 90.
33 Ally (n 15 above) 11.
34 Ally (n 15 above) 19.
35 P Benjamin ‘A review of labour markets in South Africa: Labour market regulation:
International and South African perspectives’ Employment & Economic Policy
Research Programme, HSRC (2005) 2.
36 The World Bank ‘Miles to go: A quest for an operational labour market paradigm for
developing countries’ Social Protection & Labour Sector Report (January 2008) 9.
 Implementing domestic workers’ labour rights within transformative constitutionalism 71

attempts at extending conventional labour regulation to sectors that have

defied regulation, such as the domestic sector. Studies suggest, for
example, that the number of domestic workers in South Africa has
declined following the introduction of minimum wages by means of
Sectoral Determination 7 and the duty to pay unemployment insurance
contributions.37 But does the problem lie only in the content of the law, or
does it go further?

This is not to question the importance of law as a means of providing

particular forms of protection for workers and setting parameters for
permissible conduct.38 It can, however, only do so much. Behaviour
cannot be changed by simple ‘command and control’.39 The unequal and
exploitative working conditions which the decent work agenda seeks to
address are the product of a vast range of social and economic factors quite
apart from the will of the employer.40 Hepple explains the limits of law as
an instrument of social change by looking at the distinction between ‘living
law’ and ‘abstracted judicial understandings of law’:41

‘Living law’ is the outcome of social processes, the way in which people act
within and outside legal institutions. Abstracted law, unlike living law,
demands specificity and relatively clear obligations; it operates by
individualising conflict between specific parties in a bipolar way. Disputes
about social and economic rights and equality aimed at reducing social
disadvantage and exclusion, on the other hand, are polycentric, involving
many different causes and interests. Every time a court is asked to enforce a
positive obligation to advance a socio-economic right or a right to equality of
opportunity it is confronted by the complexity and multi-dimensional nature
of social disadvantage.

Laws must therefore not only take account of the ‘different causes and
interests’ bound up with the rights deficits which they are addressing;
interventions other than law, including a range of practical interventions,
will be needed to promote parity of participation between disempowered

37 T Hertz ‘The effect of minimum wages on the employment and earnings of South
Africa’s domestic service workers’ American University, Department of Economics
Working Paper Series 2005-04 (August 2005) http://w.american.edu/cas/economics/
repec/amu/workingpapers/2005-04.pdf (accessed 24 February 2013); PF Blaauw &
LJ Bothma ‘The Impact of minimum wages for domestic workers in Bloemfontein,
South Africa’ (2010) 8 SA Journal of Human Resource Management 1.
38 ILO Report Resolution concerning decent work and the informal economy (2002) 57.
39 B Hepple ‘Negotiating social change in the shadow of the law’ (2012) 129 South African
Law Journal 248.
40 Hepple (n 39 above) 253, refers in this context to ‘social class, lack of opportunities to
work or to acquire education and skills, childhood deprivation, inadequate housing,
illness (in particular in the South African context, HIV/Aids) and lack of access to
health services. There is also discrimination on grounds of age, gender, disability and
ethnicity’. See also MA Chen et al ‘Supporting workers in the informal economy: A
policy framework’ (2002) Working paper on the informal economy, International
Labour Office: Employment Sector 13.
41 Hepple (n 39 above) 253, drawing on Ehrlich Fundamental principles of the sociology of
law (1936), a translation of Grundlegung des soziologie des rechts (1913). The importance
of this distinction in the context of domestic employment is noted below.
72 Chapter 3

workers and employers in the process of realising the decent work

agenda.42 Such interventions will need to reach deep into the
consciousness of employers, inter alia by developing public awareness of
the rights and values of domestic workers. This is an area where what has
been termed ‘meaningful engagement’ by the Constitutional Court43 could
contribute to ‘reflexive regulation’44 that may straddle the boundary
between legal and non-legal forms. Approached in this way, a close
relationship is created between the process of creating regulation and
process of seeking compliance, in the last resort by enforcement: it is
implicit that everyone concerned, and workers in particular, should take
ownership of their rights and participate actively in their realisation, rather
than passively expecting the state and courts to realise these rights on their
behalf.45

Path-breaking though such an approach may be, aspects of it are

widely accepted as good practice. Few would question that laws become
more effective when accompanied by public awareness campaigns,
training of those responsible for its application, the existence of accessible
complaint mechanisms and dedicated mechanisms for promoting
compliance and enforcement.46 The ILO points out that regulatory
interventions aimed at marginalised and vulnerable workers should
include appropriate measures for integrating those workers into the
economic and social mainstream.47 Statistical and other research should
be conducted to lay a basis for such policies and programmes.48

The ILO concludes that,

ultimately, it will be joint actions taken at the national level by governments,

trade unions and employers that will bring decent work to the millions of
domestic workers across the world.49

42 D du Toit ‘Extending the frontiers of employment regulation: The case of domestic

employment in South Africa’ (2010) 14 Law, Democracy & Development 205 209.
43 Occupiers of 51 Olivia Road, Berea Township and 197 Main Street Johannesburg v City of
Johannesburg & Others 2008 (3) SA 208 (CC), cited in Hepple (n 39 above) 257-258.
‘Meaningful engagement’ is explained by the Court as a problem-solving process that
will differ according the nature of the problem being dealt with but is aimed at
‘[achieving] certain objectives’. For the approach adopted by the Court in addressing
the issue of eviction and the underlying problem of homelessness (a critical area of the
decent work agenda) see paras 14 ff of the judgment.
44 As discussed in part 4.5 of Chapter 2 (above).
45 Hepple (n 39 above) 248, 258-260. At the 2006 international conference on ‘Respect
and rights: Protection for domestic workers’, referred to in part 1 of Chapter 1 (above),
domestic workers made it clear that they do not want others to act and speak on their
behalf; they want to express their own voice and set their own priorities: C Mather
‘Domestic workers: Their time now’ (2010) 17 International Union Rights 4.
46 Human Rights Watch (n 5 above) 4.
47 ILO Report (n 1 above) 12.
48 ILO Report (n 1 above) 57.
49 ILO (n 13 above) 97. It seems to follow that other groups concerned with given issues
at a national level should equally be involved. The inclusion of ‘organisations of
community and development interests’ in the membership of the National Economic,
Development and Labour Council (NEDLAC) offers a precedent: National
 Implementing domestic workers’ labour rights within transformative constitutionalism 73

From what has been said it follows that ‘joint actions’ should not be
confined to the national level; ‘meaningful engagement’ should involve
those directly affected at every other level, both in giving content to
regulation and in supervising its implementation. It also follows that such
actions should be seen as laying a basis not only for legislation but for
interventions of different kinds.

4 The Constitutional dimension

The advent of South Africa’s era of rights-based constitutionalism and its

impact on labour law were discussed by Le Roux in Chapter 2. For the first
time domestic workers were treated like other workers, taking them quite
literally ‘out of the invisible shadows and [into] the full glare of the politics
of transition as they took to the streets with banners proclaiming “[t]he
new South Africa must be for domestic workers also”’.50 None could
disagree that the Constitution, as the supreme law of South Africa, now set
standards against which all law must be measured and articulated the
rights which domestic workers were entitled to claim.51

But Le Roux went on to develop three further themes that transcend a

formalistic reading of the Constitution and lay a basis for constructing a
regulatory framework for domestic work in accordance with the
underlying objectives of the Bill of Rights. First, having demonstrated that
constitutional interpretation is contested terrain, he argued for a
‘transformative’ approach to the Bill of Rights in line with Fraser’s concept
of ‘non-reformist reform’, combining ‘the practicality of affirmation
[correcting inequitable outcomes] with the radical thrust of
transformation’ to remove the causes of inequitable outcomes and
promote ‘social justice’.52

Secondly, he highlighted ‘the synergy … between the constitutional

rights of domestic workers under the South African Bill of Rights and the
rights of domestic workers under ILO Convention 189’ which, in turn, is
suffused with the paradigm of ‘decent work’ as a bridge between fair
working conditions and social justice.53 The effect is that the
transformative thrust of the Bill of Rights and ‘decent work’, the latter as
reflected via the prism of Convention 189, are interacting and mutually

49 Economic, Development and Labour Council Act 35 of 1994, sec 3(1)(c). The
implementation of the Act since 1995, however, makes it clear that there are lessons to
be learned in achieving the full benefits of engagement at this level.
50 Ally (n 15 above) 3.
51 A Govindjee & AJ van der Walt ‘Labour law and the Constitution’ in A van der Walt
et al (eds) Labour law in context (2012) 3.
52 As discussed in part 4.4 of Chapter 2 (above).
53 Eg, as mandated by secs 39(1)(b) and 233 of the Constitution. See also National Union
of Metal Workers of South Africa & Others v Bader Bop (Pty) Ltd & Another 2003 (2) BCLR
182 (CC) para 37, where the Constitutional Court held that an interpretation that takes
into account principles contained in relevant ILO Conventions is to be preferred.
74 Chapter 3

supportive in giving meaning to the rights mandated by both.54 Or, to put

it differently, ‘decent work’ as outlined in Chapter 2 thus serves as a
metaphor for the vision of social justice implicit in the Bill of Rights as well
as Convention 189. Given its importance to the discussion that follows, it
is useful to focus more clearly on what it signifies.

The ILO’s decent work agenda was introduced in the late 1990s by
former ILO Director-General, Juan Somavia, as an affirmation of the right
of all individuals ‘to pursue both their material well-being and their
spiritual development in conditions of freedom and dignity, of economic
security and equal opportunity’.55 Most tellingly, the concept of decent
work as opposed to decent employment was used to include a broader
constituency than those in formal, or standard, employment, thus
recognising that there is a ‘variety of ways in which people contribute to
the economy and society’.56 It further recognises that the various
dimensions of an individual’s life are interdependent and indivisible.57 The
decent work agenda is

a strategic goal for development that acknowledges the central role of work in
people’s lives. This includes work that is productive and delivers a fair
income; provides security in the workplace and social protection for families;
and offers better prospects for personal development and social integration,
freedom to express concerns, opportunities to organise and participate in
decision-making, and equal opportunity and treatment for all women and
men.58

The decent work agenda thus offers a theory as to why governments

should intervene in labour markets. It accepts that unregulated labour
markets are imperfect and that employers may exploit workers to minimise
costs, resulting not only in unfairness but also in inefficiency.59 In the case
of domestic workers it is argued that decent work will not be achieved in
the absence of meaningful regulation, as many workers will remain
dependent on an individual employer’s sense of fairness rather than on
commonly established legal norms in which workers’ societal contribution
and inherent human dignity are valued.60

Le Roux goes on to outline what these norms should be. He flags a

multi-faceted range of basic rights where the requirements of Convention
189 converge with those of the South African Bill of Rights to delineate the

54 See also A Blackett ‘Introduction: Regulating decent work for domestic workers’
(2011) 23 Canadian Journal of Women & the Law 1.
55 G MacNaughton & DF Frey ‘Decent work for all: A holistic human rights approach’
(2011) 26 American University International Law Review 441.
56 MacNaughton & Frey (n 55 above) 449.
57 MacNaughton & Frey (n 55 above) 468.
58 ILO ‘Tackling the “decent work deficit”’ 6 July 2006 http://wcmsq3.ilo.org/global/
about-the-ilo/newsroom/features/ WCMS_071242/lang--en/index.htm (accessed 11
December 2012).
59 Botero et al (n 12 above) 3.
60 A Blackett (n 54 above) 25.
 Implementing domestic workers’ labour rights within transformative constitutionalism 75

various aspects of ‘decent work’ that need to be implemented through

‘meaningful regulation’ if domestic workers are to enjoy the social justice
promised by the Bill of Rights and the decent work agenda.

Finally, Le Roux notes the principle of ‘reflexive regulation’, or

regulation based on participation by those directly involved (‘self-
regulation’) as opposed to traditional ‘command-and-control’ forms of
regulation from above, which much of South Africa’s labour law consists
of.61 A regulatory regime for domestic work capable of realising social
justice, it is proposed, should be constructed as far as possible by reflexive
techniques rather than ‘command-and-control’ mechanisms.62

Taken together, these three themes – transformative constitutionalism,

decent work and reflexive (responsive) regulation – create a three-
dimensional model against which the substance of labour (and other)
rights giving effect to domestic workers’ fundamental rights, as well the
processes for defining those rights, can be evaluated. The remainder of the
chapter will use this model to examine the implementation of the key
work-related63 rights flagged by Le Roux and suggest ways of addressing
problem areas in a substantive as well as a procedural sense. Apart from
the intrinsic importance of such an exercise in the domestic sector, it
should be seen as part of the broader discussion of how labour market
regulation can be developed to embrace work in all its diversity, including
non-standard and currently informal types of work.64

61 Discussed in part 4.5 of Chapter 2 (above); see also part 7 of Chapter 1 (above).
62 See also R Rogowski & S Deakin ‘Reflexive labour law, capabilities and the future of
Social Europe’ University of Warwick School of Law, Legal Studies Research Paper
No 2011/04 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1780922 (accessed
22 February 2013).
63 Eg, those implemented by the LRA, BCEA and SD 7. Since the concept of decent
work extends beyond the workplace, other aspects of the regulatory framework are
dealt with in later chapters.
64 See, eg, R le Roux The world of work: Forms of engagement in South Africa Monograph 02/
2009, Institute of Development and Labour Law, University of Cape Town;
C Thompson ‘The changing nature of employment’ (2003) 24 Industrial Law Journal
1793; J Theron ‘Employment is not what it used to be’ (2003) 24 Industrial Law Journal
1247; P Benjamin ‘Labour market regulation: International and South African
perspectives’ (2005) Paper for the Employment & Economic Policy Research
Programme, Human Sciences Research Council 31; J Theron ‘Intermediary or
employer? Labour brokers and the triangular employment relationship’ (2005) 26
Industrial Law Journal 618; J Theron ‘The shift to services and triangular employment:
Implications for labour market reform’ (2008) 29 Industrial Law Journal 1; P Benjamin
‘Decent work and non-standard employees: Options for legislative reform in South
Africa: A discussion document’ (2010) 31 Industrial Law Journal 845. For a discussion
of the growth of informal work and the resulting impact on the application of labour
laws, see RM Antoine ‘Rethinking labour law in the New Commonwealth Caribbean
Economy: A framework for change’ (2011) 32 Comparative Labor Law & Policy Journal
343.
76 Chapter 3

5 Testing the regulation of domestic work in South

Africa against the ‘decent work’ paradigm

5.1 Overview of the regulatory framework

We have seen that domestic workers in South Africa are not protected by
any special statute; subject to one limited exception,65 they enjoy the same
statutory protection as all other employees. We therefore begin with a brief
overview of the statutory regime.

Section 23 of the Constitution affords ‘everyone’ the right to fair labour

practices; it therefore applies to employers as well as workers. Two
principal statutes, the Labour Relations Act 66 of 1995 (LRA) and the
Basic Conditions of Employment Act 75 of 1997 (BCEA), were enacted to
give effect to the rights contained in section 23. In addition, section 9 of the
Constitution guarantees the right to equality and the right not to be unfairly
discriminated against. The Employment Equity Act 55 of 1998 (EEA) was
enacted to implement these rights in the employment relationship. These
statutes apply to all ‘employees’.66

Thereafter, in 2002, the Minister of Labour promulgated Sectoral

Determination 7: Domestic Workers Sector (SD 7) in terms of section
51(1) of the BCEA to regulate minimum standards of employment for
workers in the domestic sector. This makes South Africa one of relatively
few countries in which the need for standard-setting premised on the
unique conditions of the domestic sector has been acknowledged and steps
have been taken to address the circumstances of this sector specifically.67

With effect from 1 April 2003 domestic workers were furthermore

included under the Unemployment Insurance Act 63 of 2001 (UIA) which
regulates the payment of, amongst others, unemployment and maternity
benefits to qualifying contributors.68

5.1.1 The Labour Relations Act

The LRA comprehensively restructured employment relations in South

Africa. For the first time all employees were provided with protection

65 The reference is to SD 7, discussed below.

66 Independent contractors are specifically excluded from the definition of ‘employee’:
see sec 213 of the LRA, sec 1 of the EEA and sec 1 of the BCEA. Also see sec 200A of
the LRA and sec 83A of the BCEA for the presumption that operates in determining
whether an individual is an ‘employee’ for statutory purposes.
67 ILO Report (n 1 above) para 119.
68 See Chapter 4 for a more detailed discussion of the provisions of the UIA as far as
domestic workers are concerned and the implementation of the right to social security
in terms of sec 27(1)(c) of the Constitution.
 Implementing domestic workers’ labour rights within transformative constitutionalism 77

consistent with international labour standards.69 The LRA regulates key

issues such as freedom of association, the right to engage in industrial
action, the right not to be subjected to unfair labour practices and the right
not to be unfairly dismissed. It also establishes a dispute resolution system
and creates remedies for breach of the rights contained in the Act.

5.1.2 The Basic Conditions of Employment Act and Sectoral

Determination 7

SD 7 is largely a restatement of the minimum standards laid down by the

BCEA, with some provisions adapted to the conditions of the domestic
employment sector. Section 57 of the BCEA stipulates that if a matter
regulated in the BCEA is also regulated in the sectoral determination, the
provision of the sectoral determination must prevail. It is therefore
convenient to consider SD 7 in conjunction with the BCEA.

SD 7 applies to all domestic workers in SA, including those employed

or supplied by temporary employment services, more commonly known as
labour brokers, and those employed as independent contractors.70 The
determination does not however apply to domestic workers employed on
farms on which employees performing agricultural work are employed;
those covered by another sectoral determination in terms of the BCEA;
and those covered by an agreement of a bargaining council in terms of the
LRA.71 Domestic workers who work less than 24 hours per month for an
employer are furthermore excluded from all provisions of SD 7 except
clauses 2 and 3, which provide for minimum wages.72

5.1.3 The Employment Equity Act

A central purpose of the EEA is to achieve equality in the workplace by

promoting equal opportunity and fair treatment in employment through
the prohibition of unfair discrimination on an open-ended list of grounds
including race, gender, sex, HIV status, family status and ethnic or social
origin.73 Chapter II of the Act provides a remedy for unfair discrimination
as well as regulating medical testing, psychological testing and similar
assessments.

69 Benjamin (n 64 above) 845.

70 SD 7, clause 1(1).
71 SD 7, clause 1(2).
72 See SD 7, clause 1(3), discussed below. SD 7 also does not apply to domestic workers
employed on farms or to those covered by another sectoral determination in terms of
the BCEA or a bargaining council agreement in terms of the LRA: clause 1(2).
73 EEA, sec 2(a). For obvious reasons the second purpose of the EEA, the
implementation of affirmative action measures, plays no role in this sector.
78 Chapter 3

5.1.4 An important caveat

Everything said thus far remains subject to a crucial qualification which

has already been alluded to more than once and, indeed, formed one of the
starting points for the study: the domestic sector remains one of the most
difficult sectors to regulate in that recalcitrant employers can ignore the
law with relative impunity.74 The distinction between ‘living law’ and
‘abstracted judicial understanding’ becomes unmistakeably evident under
these conditions. The statutory rights referred to above are not a statement
of the ‘living law’ but, rather, of the ideal situation postulated by the
existing regulatory framework. The immediate question, which we go on
to consider in part 5.6 (below), is the extent to which this ideal framework
satisfies the criteria of ‘decent work’. The question of its implementation is
considered more fully in Chapter 5 (below), where it will be argued that
inadequate compliance should not be seen as an administrative problem
but as a design flaw in the relevant legislation itself. This proviso should be
borne in mind throughout the discussion that follows.

5.2 The rights bound up with the ‘decent work’ paradigm and
their implementation within the labour regulatory
framework

‘Decent work’, as discussed above,75 is used to signify a combination of the

rights and underlying values contained in Convention 189 with their
counterparts in the South African Bill of Rights, interpreted as a mutually
reinforcing and harmonious set of criteria with which the legislation
should comply. We turn now to examine the content of our labour
legislation against this paradigm.

5.2.1 Scope of legal coverage

Convention 189 starts by inclusively defining ‘domestic work’ as ‘work

performed in or for a household or households’76 and ‘domestic worker’ as
‘any person engaged in domestic work within an employment
relationship’,77 excluding an individual who performs domestic work
‘only occasionally or sporadically and not on an occupational basis’.78

74 Mather (n 45 above) 2. See also C Fenwick et al ‘Labour law and development:

Creating an enabling regulatory environment and encouraging formalisation’ Paper
submitted for Conference of the Regulating for Decent Work Network, ILO, Geneva,
8-10 July 2009 6.
75 See part 6 of Chapter 2 (above).
76 Art 1(a).
77 Art 1(b).
78 Art 1(c).
 Implementing domestic workers’ labour rights within transformative constitutionalism 79

The exclusion should be interpreted in accordance with the decent

work paradigm and the aim of social justice. The Convention and
Recommendation are aimed at a specific category of people: those for
whom domestic work is a livelihood. It does not detract from the
protection enjoyed by the ‘occasional’ domestic worker in terms of other
instruments of international law or domestic law, or – in particular – the
rights of millions of women performing domestic work on a non-
occupational basis in the home. Their position has been the subject of in-
depth research in recent years.79 However, it is not the same as that of
persons doing domestic work for a living, which forms the subject of
Convention 189 and which, in terms of article 1, is comprehensively
covered.

The first question is whether the LRA, BCEA and EEA are equally
inclusive. ‘Domestic work’ is not expressly defined in South African labour
legislation, even though the term forms part of certain provisions.80 This is
problematic, given that it is difficult to delineate or conceptualise.81 The
uncertain nature of the tasks expected of domestic workers, due to
unpredictable needs and demands of household members, leads a lack of
defined limits of ‘domestic work’ in an occupational sense which renders
it different from most other forms of work.82 The broad definition in
Convention 189 captures this generality, indicating that no form of work
expected of domestic workers is excluded from its coverage. There are,
however, two ways in which the same degree of generality can be
discerned within at least the BCEA and SD 7 and, indirectly, also in the
LRA and EEA.

First, the BCEA defines ‘domestic worker’ as:83

[A]n employee who performs domestic work in the home of his or her
employer and includes –
(a) a gardener;
(b) a person employed by a household as driver of a motor vehicle; and
(c) a person who takes care of children, the aged, the sick, the frail or the
disabled, but does not include a farm worker.

For practical purposes, given its open-ended and non-exclusive nature, it is

submitted that this definition covers at least the same ground as that of
‘domestic worker’ in the Convention. SD 7 contains an almost identical
definition which, however, goes one step further by including

79 See part 4 of Chapter 1 (above).

80 Such as sec 17 of the LRA, discussed below, and the definition of ‘farm worker’ in sec
1 of the BCEA.
81 Chen (n 27 above) 170.
82 International Labour Office, Conditions of Work and Employment Programme
Domestic Work Policy Brief 2: Working hours in domestic work 1.
83 Sec 1. The Unemployment Insurance Act 63 of 2001 (sec 1) and the Unemployment
Insurance Contributions Act 4 of 2002 (sec 1) contain identical definitions.
80 Chapter 3

‘independent contractors’. It may further be inferred that ‘domestic work’

is work performed by a domestic worker in the scope of her or his
employment. On this basis a broad meaning should be given to ‘domestic
work’, corresponding to that in article 1 of the Convention.

The LRA and EEA contain no definition of ‘domestic worker’.

‘Employee’, however, is defined in the LRA as:84

(a) [A]ny person, excluding an independent contractor, who works for

another person or for the State and who receives, or is entitled to receive, any
remuneration; and
(b) any other person who in any manner assists in carrying on or conducting
the business of an employer …

The exclusion of ‘independent contractor’ from the definition corresponds

to the limitation of ‘domestic worker’ in article 1 of the Convention to
persons working ‘within an employment relationship’. This is potentially
problematic, given the opportunity it creates for evading the legal duties of
employers by entering into contracts for work rather than employment
contracts with domestic workers.85

Evasion of this kind in many industries worldwide has a long history,

including in South Africa.86 This gave rise to the amendment of both the
LRA and the BCEA in 2002 to create a presumption that a worker meeting
any one of a number of criteria is an ‘employee’ and thereby shifting the
onus to the party disputing it to prove the contrary.87 Likewise, the right of
‘everyone’ to fair labour practices in terms of section 23(1) of the
Constitution, and the right of every ‘worker’, rather than every ‘employee’,
to form and join trade unions in terms of section 23(2), favour an extensive
interpretation of ‘employee’, which is further reinforced by the well-
established approach of the courts to look at the substance of the work
relationship rather than its form.88

SD 7, as noted above, has addressed the problem by extending the

definition of ‘domestic worker’ to include independent contractors. In the
case of the LRA, BCEA and EEA any remaining uncertainty may likewise
be removed by a purposive reading89 to bring the meaning of ‘employee’
and ‘domestic work’ at least in line with the corresponding terms in

84 LRA, sec 213. Sec 1 of the EEA contains a virtually identical definition.
85 Ie, locatio conductio operis rather than locatio conductio operarurm.
86 See, eg, Building Bargaining Council (Southern & Eastern Cape) v Melmons Cabinets CC
[2001] 3 BLLR 329 (LC).
87 LRA, sec 200A; and BCEA, sec 83A.
88 See, eg, Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC).
89 ‘Purposivism attributes meaning to a legislative provision in the light of the purpose
that it seeks to achieve in the context of the instrument of which it is part. Where clear
language and purpose are at odds the latter prevails’: Equity Aviation Services (Pty) Ltd v
SATAWU & Others [2009] 10 BLLR 933 (LAC) para 45, citing L du Plessis Re-
interpretation of statutes (2002) 96.
 Implementing domestic workers’ labour rights within transformative constitutionalism 81

Convention 189 and, given the language of section 23 of the Constitution,

broadening it to include workers whose formal status as ‘employees’ may
be in doubt.

More problematic is the exclusion by SD 7 of domestic workers ‘who

work less than 24 hours per month for an employer’ from all provisions
except clauses 2 and 3, which provide for minimum wages.90 This is
presumably intended to avoid imposing inappropriate administrative
duties on employers where employment is of a casual or fragmented nature
and, as such, may be seen as an aspect of the employer’s right to fair labour
practices. It may also correspond with the exclusion by Convention 189 of
domestic workers who perform domestic work ‘occasionally or
sporadically’ (see above). However, depending on the meaning given to
these terms, the exclusion by SD 7 may go further than that intended by
the Convention.

On the one hand, twenty-four hours per month translates into less than
one day per week. A domestic worker working no more than this might be
regarded as not doing domestic work on an ‘occupational’ basis. In
practice, however, many domestic workers are employed part-time and,
though working no more than one day per week for any one employer,
nevertheless work up to five, or more, days per week for different
employers on a clearly occupational basis. However, they would be
excluded from most of the protection offered by SD 7.

It is difficult to calculate the number of workers who find themselves

in this position. In one survey of 200 employers of domestic workers, six
(3 per cent) stated that they employed a worker for half a day per week and
44 (22 per cent) indicated that their worker worked for one day per week.91
According to another study the largest cohort of employers (54 out 132, or
41 per cent) employed a domestic worker ‘once a week’.92 These figures
should be seen against the background of national statistics reflecting a
total of 238 000 workers working less than 15 hours per week in October-
December 2012 (showing a year-on-year increase of 6.7 per cent), of whom
143 000 were women (a year-on-year increase of 23.8 per cent).93 This
information is clearly inconclusive but does not suggest a very large
number of domestic workers falling through this crack.

Widespread non-compliance with statutory requirements, however,

may – ironically – place an artificial limit on the number of workers thus
excluded. Employers who do not comply with SD 7 will hardly take

90 Clause 1(3). Minimum wages are stipulated by clauses 2 and 3.

91 Domestic Workers Survey conducted for the Social Law Project by African Response,
unpublished (2009).
92 Blaauw & Bothma (n 37 above) 3.
93 Statistics South Africa Quarterly Labour Force Survey Quarter 4, 2012 Table 3.7 http://
www.statssa.gov.za/publications/P0211/P02114thQuarter2012.pdf (accessed 27
February 2013).
82 Chapter 3

account of clause 1(3), regardless of the number of hours their workers

work per month. Should compliance or enforcement become more
general, however, the exclusion may serve as an incentive for employers to
limit their workers’ contractual hours to no more than 24 per month. The
question of compliance is examined further in Chapter 5 (below), but the
use of legal exclusions to defeat the purposes of the law in question must
be borne in mind when rights are formulated. As discussed in the final part
of this chapter, article 2 of the Convention goes on to propose a way in
which this issue can be addressed.

5.2.2 Freedom of association and collective bargaining

Freedom of association and the right to collective bargaining has emerged

historically as the most fundamental human right at work. It is prioritised
by article 3(2)(a) of the Convention and likewise enjoys pride of place in
clause 2 of Recommendation 201. Importantly, as Le Roux explains:94

The ILO understands these rights not simply as preventing the state from
banning workers’ organisations but sees them as placing a positive duty on the
state to take supporting measures to strengthen the capacity of both workers’
and employers’ organisations in order to facilitate a more robust workplace
democracy.

Convention 189 does this by defining the objective as ‘the effective

recognition of the right to collective bargaining’95 and requiring member
states to ‘to take measures to respect, promote and realise’ the rights in
question. Recommendation 201 suggests that such measures should
include:96

• Identifying and eliminating any legislative or administrative restrictions or

other obstacles to the right of domestic workers to establish their own
organisations or to join the workers’ organisations of their own choosing,
and to the right of organisations of domestic workers to join workers
organisations, federations and confederations;
• Giving consideration to take or support measures to strengthen the
capacity of workers’ and employers’ organisations, organisations
representing domestic workers and those of employers of domestic
workers, to effectively promote the interests of their members, provided
that at all times the independence and autonomy, within the law, of such
organisations are protected.

Section 23(2), (4) and (5) of the South African Bill of Rights guarantees the
right of all workers to form and join a trade union and participate in its
activities, including the right to strike and engage in collective bargaining.

94 See part 3.4 of Chapter 2 (above).

95 Art 3(3).
96 Recommendation, art 2.
 Implementing domestic workers’ labour rights within transformative constitutionalism 83

These rights should be read in conjunction with sections 17 and 18 of the

Bill of Rights which guarantee the right to peacefully assemble as well as
the related rights to demonstrate, picket and present petitions. They should
also be read in conjunction with, and infused with, the ‘decent work’
criteria of Convention 189 and Recommendation 201 (above).97
Furthermore, it will be recalled that the state is required not to ‘respect’ and
‘protect’ these and other rights contained in the Bill of Rights, but also to
‘promote and fulfil’ them.98

All these rights are regulated by the LRA. It provides employees with
extensive trade union rights and prohibits employers from taking any
adverse action against employees for exercising any right in terms of the
LRA.99 A cornerstone of the collective bargaining regime is the set of
organisational rights enjoyed by trade unions together with employees’
right to engage in lawful strike action.100 The LRA defines a ‘strike’ as101

the partial or complete concerted refusal to work, or the retardation or

obstruction of work, by persons who are or have been employed by the same
employer or by different employers, for the purpose of remedying a grievance
or resolving a dispute in respect of any matter of mutual interest between
employer and employee … (emphasis added)

All these rights also extend to domestic workers.102 However, we have

noted that their practical value is limited in the context of the private
relationship between the domestic worker and employer. The reasons are
well-known. First, the organisational and collective bargaining rights
provided for in the LRA are premised on the existence of a formal
‘workplace’, in which a number of employees are employed and where a
‘sufficiently representative’ trade union is present.103 The statutory
collective bargaining model did not and does not contemplate a situation
where workers are employed individually, often on a part-time and
informal basis.104 Similarly, the use of the terms ‘concerted’ and ‘persons’
in the LRA’s definition of ‘strike’ (above) has been interpreted by the
courts as meaning that a single employee cannot embark on a lawful

97 Constitution, sec 39(1), as discussed above.

98 Constitution, sec 7(2).
99 LRA, sec 5(1). See also chap III parts C to F and chap VI of the Act, respectively
providing for centralised collective bargaining and the operation of trade unions and
employers organisations.
100 LRA, chap III part A and chap IV.
101 LRA, sec 213.
102 Subject to two qualifications: A trade union representative’s right of access to the
domestic workplace is subject to the employer’s consent; and the trade unions’ right to
disclosure of information by the employer for the purposes of collective bargaining or
enabling trade union representatives (shop stewards) to perform their functions in the
workplace is excluded: sec 17.
103 LRA, sec 11.
104 ES Fourie ‘Non-standard workers: The South African context, international law and
regulation by the European Union’ (2008) 11 Potchefstroom Electronic Law Journal 110
111.
84 Chapter 3

strike.105 Given the inseparable connection between collective bargaining

and the possibility of engaging in industrial action, this interpretation
drives home the disjuncture between the LRA’s model of labour relations
and the realities of domestic work.

The obvious solution, that workers and employers should form

organisations to engage in collective bargaining, has proven immensely
difficult to achieve. With unionisation in the domestic sector
internationally at barely 1 per cent,106 domestic workers are not only
practically unorganised but are widely regarded as ‘unorganisable’.107
Again, the barriers to organisation are obvious: domestic workers work in
isolation, behind closed doors, typically in a close relationship with their
employers which does not lend itself to third-party representation in the
same way as that between workers on the shop floor and their
managers.108

The promulgation of SD 7, as noted above, may be seen as an

indication by government that collective bargaining by workers in the
sector is considered unlikely and, hence, of the intention to regulate
conditions of employment on their behalf, an approach criticised by Ally
as ‘paternalistic’. A sectoral determination, however, is no substitute for
the empowering and participatory aspects of effective collective
bargaining. Even though the Minister of Labour must conduct an
investigation before issuing a sectoral determination,109 there is no
obligation on the Minister to consult with any the trade union or workers
during this investigation.110

Against this background it can scarcely be said that legislative or other

strategies to ‘effectively’ realise the right of domestic workers to freedom of
association and collective bargaining, as envisaged by Convention 189 and
the Bill of Rights, are being implemented in the domestic sector. The
reality is that individual domestic workers remain vulnerable to employer
exploitation and that measures to ‘promote’ and ‘fulfil’ the decent work
objective of social dialogue in this sector remain to be developed.

105 For criticism of this interpretation, see D du Toit & R Ronnie ‘The necessary evolution
of strike law’ (2012) Acta Juridica 195; also published in R le Roux & A Rycroft (eds)
Reinventing labour law (2012).
106 ILO ‘Organizing for Social Justice’ Report I (B) to the International Labour
Conference, 92nd Session, 2004 paras 162-169.
107 M Ford ‘Organizing the unorganizable: Unions, NGOs, and Indonesian Migrant
Labour’ (2004) 42 International Migration 99, as referenced in Ally (n 23 above) 187.
108 Ally (n 23 above) 187. See also Shah & Seville (n 7 above) 418.
109 BCEA, Chapter 8.
110 The furthest the Act goes is to require the Minister to invite written representations
from the public: sec 52(3).
 Implementing domestic workers’ labour rights within transformative constitutionalism 85

5.2.3 Protection against discrimination

As we have seen, article 3(2)(d) of Convention 189 calls for ‘the

elimination of discrimination in respect of employment and
occupation’.111 Section 9 of the Bill of Rights likewise states that no person
may directly or indirectly discriminate against any person on any one or
more of the grounds listed in sub-section (3), which include pregnancy and
marital status. The prohibition has been interpreted as including
discrimination on the basis of HIV status as well.112

The EEA, which was enacted to give effect to the prohibition of unfair
discrimination in the employment context,113 contains a similar but more
extensive list of grounds including pregnancy, HIV status and family
responsibility. It states that no person may unfairly discriminate, directly
or indirectly, against any employee, in any employment policy or practice,
on one or more of these grounds.114 Domestic workers falling within the
definition of ‘employee’115 are consequently protected against unfair
discrimination on these and other grounds.

An employee who falls victim to unfair discrimination or harassment

may refer the matter to the CCMA for conciliation and, should the dispute
remain unresolved, may refer it to the Labour Court for adjudication.116
While the provisions of the EEA thus give comprehensive effect to the
above-mentioned basic rights, the practical effect is questionable for a
number of reasons.

First, while referral to the CCMA is free of charge, referring a matter

to the Labour Court will be unaffordable to most domestic workers.
Secondly, in this case as in others it is likely to be very difficult for a
domestic worker to pursue a complaint against an employer while
continuing to work in that employer’s household. To this extent it is
submitted that the legislative scheme does not meet the constitutional
standard or the requirements of Convention 189 as far as protection
against discrimination is concerned.

5.2.4 Protection against unjustifiable medical testing

Compulsory medical testing of domestic workers, especially for pregnancy

and HIV/AIDS, has been described by the ILO as ‘tantamount to
discrimination’ when used to unjustifiably exclude workers from

111 As regulated by the Discrimination (Employment and Occupation) Convention 111 of

1958.
112 Hoffmann v South African Airways 2000 (11) BCLR 1235 (CC).
113 Constitution, sec 9(4).
114 EEA, sec 6(1).
115 EEA, sec 1.
116 EEA, sec 10.
86 Chapter 3

employment or otherwise to their detriment.117 Although Convention 189

does not refer to it expressly, article 3 of Recommendation 201 states that,
in taking measures to eliminate discrimination against domestic workers,
member states should:

• ensure that arrangements for work-related medical testing respect the

principle of confidentiality and privacy;
• prevent any discrimination related to such testing; and
• ensure that no domestic worker is required to undertake HIV or pregnancy
testing or disclose HIV or pregnancy status.

The Recommendation adds that, where medical testing of domestic

workers is proposed, member states should consider:

• making public health information available to the household and the

worker on the primary health and disease concerns giving rise to the need
for medical testing;
• providing information to the parties on voluntary medical testing, medical
treatment, and good health and hygiene practices, consistent with public
health initiatives for the community generally; and
• distributing information on best practices for work-related medical
testing.118

The Bill of Rights, like Convention 189, does not address the issue of
medical testing directly. It does, however, protect the right to dignity119
and privacy120 as well as the right to bodily and psychological integrity,
which includes the right to ‘security in and control over their body’ as well
as the right ‘not to be subjected to medical or scientific experiments
without their informed consent’.121

Compulsory medical testing of employees is regulated by the EEA. It

is defined as ‘any test, question, inquiry or other means designed to
ascertain, or which has the effect of enabling the employer to ascertain,
whether an employee has any medical condition’.122 In general, such
testing is prohibited unless legislation permits or requires it123 or it is
justifiable in the light of medical facts, employment conditions, social
policy, the fair distribution of employee benefits or the inherent
requirements of the job.124 HIV testing is prohibited unless the Labour
Court declares it to be ‘justifiable’.125

117 ILO Report (n 1 above) para 190.

118 Recommendation, art 4.
119 Constitution, sec 10.
120 Constitution, sec 14.
121 Constitution, sec 12(2).
122 EEA, sec 1.
123 EEA, sec 7(1)(a). As in the case of, eg, aviation legislation.
124 EEA, sec 7(1)(b).
125 EEA, sec 7(2).
 Implementing domestic workers’ labour rights within transformative constitutionalism 87

Consequently, whether an employer may require a domestic worker to

undergo medical testing would depend on the circumstances and the
reason(s) for such testing. While not listed anywhere, it may be presumed
that relevant factors would include the duties the domestic worker is
required to engage in, the nature of the medical testing and the existence
of a sufficient link between those duties and the testing that is required. In
the case of compulsory HIV testing the employer needs to seek the
approval of the Labour Court in advance. The EEA does not stipulate the
grounds on which the Labour Court may authorise such testing, but does
set out conditions which may be imposed when granting an order to this
effect.126

The EEA, thus, does not focus on the issues of discrimination and
privacy of domestic workers in the context of medical testing with which
the Recommendation is primarily concerned. The Recommendation
seems to envisage a complete prohibition on testing for HIV status and
pregnancy, suggesting that there are no circumstances under which such
testing of domestic workers might be justified. It further addresses the issue
of awareness-raising as to the reasons(s) for medical testing and the effect
of a positive or negative result on the employer, employee, and the
employment relationship in general.

The constitutional right to privacy does find an echo in employment

legislation, particularly in the context of HIV/AIDS policy in the
workplace,127 preventing sexual harassment128 and the employer’s duty to
disclose information.129 The provisions in question, however, are
essentially directed at the conditions of larger workplaces and find little
practical application in the domestic work relationship. Awareness-
raising, similarly, is mentioned only in the context of large-scale
employment; for example, through the development of employment
equity plans by designated employers.130 This leaves a considerable area
of uncertainty as to the extent of protection against compulsory medical

126 Sec 50(4) of the EEA authorises the court to ‘make any order that it considers
appropriate in the circumstances, including imposing conditions relating to – (a) the
provision of counselling; (b) the maintenance of confidentiality; (c) the period during
which the authorisation for any testing applies; and (d) the category or categories of
jobs or employees in respect of which the authorisation for testing applies’. For a more
detailed discussion see Joy Mining Machinery, a Division of Harnischfeger (SA) (Pty) Ltd v
National Union of Metalworkers of SA & Others (2002) 23 ILJ 391 (LC), and Irvin &
Johnson Ltd v Trawler & Line Fishing Union & Others [2003] 4 BLLR 379 (LC). See also
the Code of Good Practice: Key Aspects of HIV/AIDS and Employment which
provides further guidance on the requirements for such testing in terms of the EEA.
127 Code of Good Practice on HIV and AIDS and the world of work (GN 451 of 15 June
2012), eg items 5.10 and 6.2.1.
128 Amended Code of Good Practice on the Handling of Sexual Harassment Cases in the
Workplace (GN 1357 of 4 August 2005).
129 See, eg, LRA, sec 16(5)(d); EEA, sec 18(2).
130 Code of Good Practice: Preparation, Implementation and Monitoring of Employment
Equity Plans (GNR 1394 of 23 November 1999). ‘Designated employers’ in the private
sector are those with over 50 employees or a turnover greater than that of a small
business (as defined): EEA, sec 1.
88 Chapter 3

testing and of workers’ right to privacy in the domestic context as well as

the means whereby employers and workers are to be made aware of their
respective rights and obligations.

5.2.5 Protection against abuse, harassment and violence

Article 5 of the Convention requires ‘effective’ protection against all forms

of abuse, harassment and violence. This should include the establishment
of accessible complaints mechanisms; ensuring that all complaints are
investigated and prosecuted; and establishing programmes to relocate
domestic workers from abusive households, the rehabilitation of workers
who fall victim to abuse, harassment or violence, and the provision of
temporary accommodation and health care.131

We have seen that section 12 of the Bill of Rights guarantees the right
to freedom and security of the person, including the right to be free from
all forms of violence and not to be treated in a cruel, inhuman or degrading
manner. The corresponding duty of the state to establish an accessible
complaint mechanism in the event of violence or abuse and ensure that all
complaints are investigated and prosecuted is, in general, performed
through the criminal justice system. For reasons noted below it may be
doubted whether this provides ‘effective’ protection against violence or
abuse.

Harassment of employees is specifically regulated by the EEA. The

EEA treats ‘harassment’ as ‘a form of unfair discrimination’ which is
prohibited on any one, or a combination of, the grounds listed in the
Act.132 Domestic workers falling within the definition of ‘employee’133 are
consequently protected against harassment. Whilst verbal and mental
abuse may be regarded as harassment,134 there is no labour-specific
legislation or regulations to protect domestic workers from physical abuse
and violence at the hands of employers.

The question thus arises whether the Domestic Violence Act135 might
provide some form of protection to domestic workers. The Act is only
applicable where there is a ‘domestic relationship’ between a complainant
and a respondent, which is primarily defined as a relationship of marriage
or other form of family or personal relationship.136 However, it includes a
relationship where the complainant and the respondent ‘share or recently

131 Recommendation, art 7.

132 EEA, sec 6(3).
133 EEA, sec 1.
134 Racial abuse, for example, constitutes unfair discrimination: cf South African Transport
Allied Workers Union obo Finca v Old Mutual Life Assurance Company (SA) Ltd & Another
[2006] 8 BLLR 737 (LC); and Biggar v City of Johannesburg, Emergency Management
Services [2011] 6 BLLR 577 (LC).
135 116 of 1998.
136 Domestic Violence Act, sec 1.
 Implementing domestic workers’ labour rights within transformative constitutionalism 89

shared the same residence’. Whether a live-in domestic worker will be

considered as falling within this category is uncertain. However, it would
not be inconsistent with either the definition of ‘domestic violence’137 or
the purpose of the Act as reflected in its Preamble.138 On this basis it can
be argued that domestic workers are no less entitled to protection than
other members of the household and should not remain dependent on
remedies which the Preamble to the Act describes as ‘ineffective’.139

By the same token, the very need for a special regime to protect
household members against violence and abuse testifies to the relative
ineffectiveness of the general criminal law and civil law remedies in the
context of the home. It also raises questions as to the effectiveness of those
remedies in the case of domestic workers who do not live on the
employer’s premises but may nonetheless be trapped in abusive
relationships. Accurately estimating the prevalence of such abuse is
difficult, given the lack of adequate reporting mechanisms and the private
nature of domestic work.140 Certainly, there are no preventative measures
in place and no programmes for the relocation of domestic workers from
abusive households or providing them with temporary accommo-
dation.141 It thus seems clear that the legislative framework in South
Africa falls short of the standard of effectiveness envisaged by the
Convention and the corresponding constitutional rights.

5.2.6 Protection of children and the guarantee of education

opportunities

Article 4(1) of Convention 189 requires member states to set a minimum

age for domestic workers that is consistent with other relevant ILO
Conventions.142 We have seen that member states must furthermore take
measures to ensure that domestic workers above the minimum age but

137 ‘Domestic violence’ is defined in the widest possible terms as including any
‘controlling or abusive behaviour towards a complainant, where such conduct harms,
or may cause imminent harm to, the safety, health or wellbeing of the complainant’:
sec 1.
138 The Preamble refers inter alia to the constitutional right to security of the person and
recognises that ‘victims of domestic violence are among the most vulnerable members
of society; that domestic violence takes on many forms; that acts of domestic violence
may be committed in a wide range of domestic relationships; and that the remedies
currently available to the victims of domestic violence have proved to be ineffective’.
139 See also the discussion of the position of live-in domestic workers at 5.2.10 below.
140 Human Rights Watch (n 5 above) 3.
141 It may be argued that the state health services and social services provide domestic
workers who fall victim to abuse, harassment or violence with the same degree of
health care and possibilities of rehabilitation that are available to all citizens. It remains
to be considered whether this meets the standard set by the Convention and the
Recommendation.
142 The Conventions referred to are the Minimum Age Convention 138 of 1973 and the
Worst Forms of Child Labour Convention 182 of 1999, both of which South Africa
ratified in 2000.
90 Chapter 3

under the age of 18 are not deprived of compulsory education or

opportunities to participate in further education or vocational training.143

Similarly, the Constitution protects children144 from exploitative

labour practices.145 As noted in Chapter 2, no child may be required or
permitted to perform work or provide services that are inappropriate to the
child’s age or places the child’s well-being, education, physical or mental
health or spiritual, moral or social development at risk.146 Furthermore, no
person – whether a child or an adult – may be subjected to forced labour.147

Although the Constitution does not expressly prohibit the

employment of children below a particular age, it must be interpreted in
accordance with the above-mentioned Conventions.148 A minimum age of
employment is also implicit in section 28(1)(f) (above) as well as the right
to basic education entrenched in section 29.149 The BCEA and SD 7 give
effect to this implicit prohibition by providing that no person may
employ150 a child who is under 15 years of age or who is under the
minimum school-leaving age in terms of any law, if such minimum age is
15 years or more.151 The further protection required by the Constitution is
restated almost verbatim.152 Breaching any of the aforesaid provisions,
assisting an employer in employing a child in contravention of these
provisions or discriminating against anyone who refuses to permit a child
to be employed in contravention of any of the provisions, constitutes an
offence in terms of the BCEA.153

Types of domestic work which would fall foul of the above-mentioned

prohibitions are not specified in South African legislation and are left to the
labour inspectorate and the courts to identify on a case-by-case basis. One
exception is Sectoral Determination 10: Children in the Performance of

143 Convention 189, art 4(2). Similar protection is contained in the Minimum Age
Convention: see arts 1 and 2.
144 Defined as persons under the age of 18 years: the Constitution, sec 28(3).
145 Sec 28(1)(e).
146 Constitution, sec 28(1)(f).
147 Constitution, sec 13.
148 The minimum age of employment provided for in the BCEA and SD 7 is also in
compliance with the Minimum Age Convention, which South Africa ratified in 2000.
149 Sec 31(1) of the South African Schools Act 84 of 1996 requires learners to attend
school until the last school day of the year in which they reach the age of 15 or the
ninth grade, whichever is the first.
150 Secs 3 and 4 of the Basic Conditions of Employment Amendment Bill of 2012
proposes changing the word ‘employ’ to ‘require or permit a child to work’, and
changing ‘employment’ to ‘work’ wherever it occurs. The reason for the change is ‘to
achieve full compliance with South Africa’s obligations under the relevant
International Labour Standards as well as to create consistency with the Constitution
and other legislation protecting the rights of children’: Memorandum on the Objects of
the Basic Conditions of Employment Amendment Bill, 2012, para 3.3.3.
151 BCEA, sec 43(1); and SD 7, clause 23(1). Employers are also required to maintain a
record of the name, date of birth and address of every domestic employee under the
age of 18: SD 7 clause 23(3).
152 BCEA, sec 43(2); and SD 7, clause 23(2).
153 BCEA, sec 46.
 Implementing domestic workers’ labour rights within transformative constitutionalism 91

Advertising, Artistic and Cultural Activities, which regulates the

employment of children under the age of 15 in this sector in some detail. It
is arguable that similar regulation is needed in the domestic sector, given
its long history of the use and abuse of child labour, to protect children
between the ages of 15 and 18 in a manner contemplated by Convention
189 and the Constitution.

5.2.7 Fair and equal treatment of domestic workers

Le Roux persuasively argues that the requirements of articles 6 and 10 of

the Convention, that domestic workers must enjoy the same fair and
decent conditions of employment as workers generally, correspond to the
‘right to fair labour practices’ extended to all workers by section 23(1) of
the Bill of Rights. The right to fair labour practices, in turn, is principally
regulated by the LRA and the BCEA. In this section the focus will be,
firstly, on the principal aspect of the right to fair labour practices that is
regulated by the LRA, namely the right not to be unfairly dismissed or
subjected to unfair labour practices.154 Thereafter the rights covered by the
BCEA, corresponding to the various conditions of employment referred to
in article 10 of the Convention, will be looked at.

Unfair dismissal and unfair labour practices

‘Dismissal’ is defined extremely broadly in section 186(1) of the LRA and

is capable of including every form of termination of employment other
than voluntary resignation. Certain impermissible grounds of dismissal are
stigmatised as ‘automatically unfair’.155 For the rest, the LRA recognises
only three grounds on which an employer may justify the dismissal of a
worker,156 namely conduct,157 capacity (which could take the form of
poor work performance,158 ill-health, injury,159 or incompatibility160) or

154 LRA, sec 185. Neither the Convention nor the Recommendation contains any express
provisions relating to dismissal, but the right not to be unfairly dismissed is implicit in
the right to ‘fair terms of employment’ in art 6. It is, moreover, regulated in detail by
the Termination of Employment Convention 158 of 1982 and, as such, forms part of
the ‘decent work’ paradigm.
155 LRA, sec 187. The prohibited grounds include sex, gender, pregnancy or ‘exercising
any right conferred by this Act’, including the right to freedom of association in terms
of sec 5 of the Act.
156 LRA, sec 188(1). The fairness of the reason for dismissal is generally referred to as
‘substantive’ fairness.
157 See items 3-7 of Schedule 8 to the LRA, the Code of Good Practice: Dismissal.
158 See item 9 of Schedule 8 to the LRA.
159 See items 10 and 11 of Schedule 8 to the LRA.
160 Though not legally defined, ‘incompatibility’ has become accepted by the courts as a
fair reason for dismissal based on incapacity. Incompatibility is generally held to arise
where an employee does not fit within the employer’s organisational culture or
workplace, or where an employee’s character is unsuited to the work he or she is
expected to do: see E Fergus ‘Dismissal for incapacity’ in Van der Walt et al (n 51
above) 135.
92 Chapter 3

the employer’s operational requirements.161 In addition, a fair procedure

must be followed.

To challenge the fairness of a dismissal in either a substantive or a

procedural sense, a worker may refer a dispute to the CCMA for
conciliation or, if the dispute remains unresolved, to arbitration by the
CCMA or adjudication by the Labour Court.162 The onus is then on the
worker to establish that he or she has been ‘dismissed’ within the meaning
of section 186(1), whereupon the onus passes to the employer to prove that
the dismissal was substantively and procedurally fair. In the event of
succeeding with a claim, the remedy available to the worker would depend
on the reason for, and nature of, the dismissal.163

No sector-specific instrument comparable to SD 7 has been

implemented in respect of domestic workers’ rights in terms of the LRA.
The BCEA contains a number of provisions regulating termination of
employment, relating in particular to notice periods and payments due on
termination,164 which SD 7 applies to the domestic sector in almost
identical terms, albeit entitling domestic workers to somewhat more
generous notice periods.165 Live-in domestic workers also enjoy limited
protection against eviction upon termination of employment (discussed
below). Apart from this, domestic workers enjoy the same protection
against unfair dismissal and unfair labour practices as ‘workers generally’.

Unfair dismissal

In the case of unfair dismissal it does not appear at first glance as if

domestic workers are placed at any disadvantage by formally equal
treatment. Referrals of disputes by domestic workers consistently
accounted for approximate nine per cent of all referrals during the period
from 2009 to 2011,166 while domestic workers accounted for no more than

161 Operational requirements of the employer are defined as ‘requirements based on the
economic, technological, structural or similar needs of an employer’: LRA, sec 213.
162 Depending on the reason for dismissal. In general, dismissal based on conduct or
capacity is referred to arbitration, while dismissal based on operational requirements
and automatically unfair dismissal is referred to the Labour Court: see sec 191.
163 The primary remedy is reinstatement or re-employment but, where this is inapplicable
or inappropriate, compensation may be ordered: see secs 193 and 194 of the LRA.
164 BCEA, chap 5. The provision made in SD 7, art 25, for payment due on termination of
employment is noted in sec 5.2.8.2 below.
165 A domestic worker’s contract of employment may be terminated by either party on
notice of not less than one week if the worker has been employed for six months or
less, or four weeks if the worker has been employed for more than 6 months: SD 7
clause 24(1). In the case of employees generally notice of two weeks is required if the
employee has been employed between 6 and 12 months and four weeks only if the
employee has been employed for more than 12 months: BCEA, sec 37.
166 CCMA Annual Report 2010-2011 19. This is the most recent report in which a
breakdown of referrals is given.
 Implementing domestic workers’ labour rights within transformative constitutionalism 93

6.5 per cent of the total number of employees.167 Domestic workers, in

other words, were utilising seeking remedies in terms of the LRA at a
proportionally higher rate than workers in general.168

CCMA statistics for the period 1 January 2008 to 31 December 2012

furthermore show that arbitration awards handed down in matters
involving domestic work accounted for 14.5 per cent of all awards. Even
more significantly, claims referred to arbitration by domestic workers
achieved a success rate well above the average success rate for all referrals.
Out of a total of 65 535 awards in matters referred by domestic workers,
81.4 per cent were in favour of the worker and only 18.6 per cent in favour
of the employer.169 A sample of 30 reported matters referred to the CCMA
by domestic workers reveals a similar picture.170

Even this limited sample, however, also conveys hints of a mismatch

between the unique and informal conditions prevailing in the sector and
the formal dispute resolution process. In certain cases where the worker’s
claim succeeded, for example, it was under circumstances where the
employer did not take part in the proceedings.171 Conversely, in certain
matters the worker’s claim was rejected because the worker was unable to
establish that the termination of her services constituted a ‘dismissal’ in the
legal sense.172 Significant breaches of applicable legislation by employers
also came to light.173

A more tangible problem is that automatically unfair dismissal

disputes may only be referred to the Labour Court,174 thus placing a
remedy for the most egregious forms of dismissal beyond the reach of most
domestic workers.175 In this respect the protection of domestic workers

167 Statistics South Africa (n 93 above) Table D. During the period 2003-2005 referrals by
domestic workers accounted for 11.1% of all referrals: I Macun et al ‘An analysis of
Commission for Conciliation Mediation and Arbitration awards’ DPRU Working
Paper 08/134, August 2008, Table 13.
168 According to Hertz, the number of cases referred by domestic workers increased
significantly after the promulgation of SD 7 in 2002, presumably due to increased
awareness of their rights among domestic workers: Hertz (n 37 above) 5 & 17.
169 Information provided by the CCMA: March 2013 (unpublished). During April-
November 2011 55% of all CCMA awards were in favour of employees and 44% in
favour of employers: CCMA December-January 2012 15.
170 19 awards were in favour of the worker and 11 in favour of the employer. The cases
were reported in LexisNexis Arbitration Awards and the Industrial Law Journal
between 1999 and 2013.
171 Eg, Motuang and Issa (2007) 28 Industrial Law Journal 1351 (CCMA).
172 Eg, Ndimande and Hlangasa (2009) 30 Industrial Law Journal 1667 (CCMA). See also
Maake and Prinsloo (2008) 29 Industrial Law Journal 790 (CCMA) where the worker had
been dismissed for financial reasons (‘operational requirements’) and the
commissioner, on a literal reading of sec 191(12) of the LRA, ruled that the CCMA
had no jurisdiction to hear the matter.
173 Eg, Majola and Moonsamy & Another (2004) 25 Industrial Law Journal 153 (CCMA).
174 LRA sec 191(5)(b)(i).
175 But see Ndlovu v Pather (2006) 27 Industrial Law Journal 2671 (LC). In this highly
exceptional case, an unrepresented domestic worker speaking through an interpreter
succeeded in winning an order in the Labour Court for payment of 20 months’
remuneration after being dismissed for a reason related to her pregnancy.
94 Chapter 3

against dismissal falls short of the standard set by Convention 189 and the
Bill of Rights.

Unfair labour practices

Section 186(2) of the LRA defines a wide range of ‘unfair labour practices’,
the prohibition of which may be considered integral to any notion of
‘decent work’. Unfair labour practices are distinguished from unfair
dismissals in that they consist of unfair conduct short of a dismissal and
arbitrators are authorised to resolve such disputes on terms that they deem
‘reasonable’.176 The primary purpose, in other words, would be to order
the employer to desist from such unfair conduct and, where appropriate,
to compensate the employee for prejudice that has been suffered.

In practice, however, it appears that the vast majority of cases referred

to the CCMA by domestic workers are unfair dismissal disputes; in other
words, instituted after termination of employment relationships that were
often manifestly unhappy.177 While this reflects a vigorous response by
domestic workers to a violation of their right not to be unfairly dismissed,
it also reflects a relative absence of attempts to seek protection of their right
not to be subjected to unfair labour practices during the course of
employment. Except in the unlikely event that unfair conduct by
employers is limited almost exclusively to dismissal, it suggests that the
reasons for this state of affairs, and possible solutions, need to be
investigated.

5.2.8 Basic conditions of employment

We now turn to those aspects of the right to fair labour practices,

underpinned by articles 6 and 10 of the Convention, which are regulated
by the BCEA. Article 10 adds that ‘equal treatment between domestic
workers and workers generally’ in this regard must take into account ‘the
special characteristics of domestic work’. An important question is thus
whether SD 7 succeeds in adapting the requirements of the BCEA
sufficiently to the special conditions of the domestic sector.

176 LRA, sec 193(4).

177 All 30 reported cases in the sample mentioned above were unfair dismissal cases. See
also S Pandit ‘Legal protection of domestic workers: Could we learn from South
Africa?’ Research paper presented on behalf of Social Law Project to International
Centre for Development and Decent Work, University of Kassel (January 2011) 17
http://www.dwrp.org.za/images/stories/DWRP_Research/shereen_pandit_icdd_pa
per_final_version_11-01-20.pdf (accessed 6 March 2013).
 Implementing domestic workers’ labour rights within transformative constitutionalism 95

Hours of work, leave and rest periods

Article 10 of the Convention specifies that there must be equal treatment

between domestic workers and workers generally in relation to normal
hours of work, overtime compensation, periods of daily and weekly rest
and paid annual leave, taking into account the special characteristics of
domestic work.178 A domestic worker should be provided with a weekly
rest period and a fixed day for weekly rest should be agreed on.179 Suitable
rest periods, meal breaks and other breaks must also be provided for.180
Members should also define the conditions under which domestic workers
may be required to work during any period of daily or weekly rest.181 Any
period during which domestic workers are required to remain at the
disposal of the household must be regarded as hours of work.182

The BCEA sets out minimum requirements in this regard that are
applicable to employees in general.183 Most of these requirements are
repeated in SD 7, which provides greater protection in only a few
instances.184 Despite this, it may be concluded that SD 7 meets all the
requirements concerning hours of work, leave and rest periods that are
called for by the Convention and the Recommendation. As far as weekly
rest periods are concerned, SD 7’s provisions are more favourable than that
required by the Convention.185

Payment

Article 11 of Convention 189 calls for a minimum wage for domestic

workers without discrimination based on sex. It further requires that
workers be paid directly in cash, or in another lawful manner where the
worker consents thereto, at the very least once a month.186 National laws
may provide for a limited part of remuneration to be paid in kind, on terms
not be less favourable than those applicable to other workers. Payment in
kind may only be effected where workers agree to this, where such a
payment is for the personal use and benefit of the workers, and where the

178 See Convention, art 10(1), as amplified by Recommendation, arts 8-13.

179 Convention, art 10(2); Recommendation, art 11(1) and (2).
180 Recommendation, art 10.
181 Recommendation, art 12.
182 Convention, art 10(3).
183 BCEA, secs 6 – 27.
184 For regulation of the hours of work of domestic workers, see clauses 10-14 of SD 7. For
regulation of leave entitlement, see clauses 19-22. For regulation of rest periods, see
clauses 15-18.
185 Art 10(2) of the Convention stipulates that employers should grant domestic workers a
weekly rest period of at least 24 consecutive hours. This is less than the 36 consecutive
hours per week (clause 16(1)(b)) or, by agreement, 60 consecutive hours every second
week (clause 16(3)), provided for by SD 7.
186 Convention, art 12(1).
96 Chapter 3

monetary values attributed to the payments in kind are of a fair and

reasonable nature.187

Article 15 of the Recommendation adds that a written account of every

payment, and any deductions made from remuneration, should be
provided to the worker.188 Upon termination of employment outstanding
payments should be made promptly.189 As far as competencies are
concerned, the Recommendation urges member states to adopt policies
and programmes to encourage the continuing development of
competencies and qualifications of domestic workers in order to ‘enhance
their professional development and employment opportunities’.190

Le Roux argues that the right to be paid for work, a minimum wage
and a prohibition of wage discrimination between female and male
workers are implicit in the Bill of Rights.191 The more detailed
requirements of the Convention and the Recommendation are
encompassed by the right to fair labour practices and are expressly or
implicitly provided for by the BCEA and SD 7. Payment in kind, for
example, is treated as an ordinary contractual term that has to be agreed
upon and must furthermore be expressly stipulated and have its value
stated in the statement of remuneration referred to below.192

The most important change made by SD 7 in 2002 was the

introduction of minimum wages for domestic workers.193 Different wage
levels are determined for different groups of municipal areas194and annual
increases are provided for.195 SD 7 also provides detailed provisions as to
how wages are to be calculated.196 Domestic workers must be paid at no
more than monthly intervals on the normal pay day as agreed between the
parties. Payment must be in South African currency and in cash, by cheque

187 Convention, art 12(2). More specific proposals concerning the regulation of payment
in kind, with a view to preventing abuse, are made in art 14 of the Recommendation.
188 Recommendation, art 15(1).
189 Recommendation, arts 15(1) & (2).
190 Recommendation 29, art 25(1).
191 Eg, in secs 9, 13 and 23: see part 3.8 of Chapter 2 above.
192 The value of payment in kind is defined, somewhat questionably, as ‘a value agreed to
in either a contract of employment or collective agreement, provided that the agreed
value may not be less than the cost to the employer of providing the payment in kind; or
… the cost to the employer of providing the payment in kind’: Regulations on
Calculation of Employee's Remuneration in terms of sec 35(5) of the BCEA (GN 691
of 23 May 2003) reg 3 (emphasis added). It is submitted that the italicised word should
read ‘more’ instead of ‘less’ to bring it in line with the letter and spirit of Convention
189.
193 SD 7, clause 2.
194 SD 7, clause 3 Table 1.
195 SD 7 had provided for annual increases of at least 8% in 2003 and 2004: see clause 3.
The Minister of Labour has thereafter regularly announced annual wage increases by
proclamation. Thus, the minimum rate for domestic workers in urban areas working
more than 27 hours per month was originally set at R527.67 for the period
1 November 2002 to 31 October 2003, increasing to R1746 for the period as from
1 December 2012.
196 SD 7, clause 4.
 Implementing domestic workers’ labour rights within transformative constitutionalism 97

or by direct deposit into an account designated by the worker.197

Deductions from wages are prohibited except by agreement.198 Where a
deduction is agreed to, the employer may not deduct more than 10 per cent
of a domestic worker’s wage for accommodation supplied by the
employer.199

On every pay day the employer must provide the domestic worker
with a written statement on which detailed information must be shown of
the worker’s wage and overtime rate, the calculation of remuneration for
the period in question, including payment in kind, and details of any
deductions that have been made.200 On termination of employment an
employer must pay a domestic worker all outstanding monies owed to the
worker, including payment for paid time off or accrued annual leave which
the worker has not yet taken.201

Given the history of informality in a sector with its origins rooted in

slavery and unpaid female labour, the minimum wage requirement marks
a dramatic break with the past. The justification for legislative intervention
can be understood against a background of labour market distortions
under apartheid, resulting in exceptionally low wages for domestic
work.202 It is argued that such wages ‘had no real relationship to the
contribution made by the domestic workers to the household economy’
and that most domestic employers ‘would be willing to pay more if they
had to, rather than lose the domestic support or have to use equivalent
outside services such as laundromats and takeaway food’.203

Despite suggestions that the minimum wage has had a negative effect
on domestic employment levels, the total number of domestic workers
actually increased following the promulgation of SD 7 and only showed a
decline since the onset of the financial crisis and recession during 2007-
2008.204 It is suggested that any limit imposed by minimum wages on
employment growth in the sector cannot have been severe, particularly
given questionable levels of compliance, and any negative impact of higher
wages actually paid is likely to have been offset by other consequences, for

197 SD 7, clause 5(1).

198 SD 7, clause 7(1).
199 SD 7, clause 8(b).
200 SD 7, clause 6.
201 SD 7, clause 24.
202 Data collected in the early 1990s showed that the average wages of domestic workers
constituted about 4% of the average salary of white workers: NALEDI Research Paper
on Living Wage ‘Towards a COSATU living wage conference: A NALEDI research
report’ (June 2011) 10.
203 NALEDI (n 202 above) 10.
204 ‘Private household’ employment rose from 1 036 000 in March 2001 to 1 088 000 in
March 2003 and reached a high point of 1 108 000 in March 2007. ‘Domestic’
employment thereafter declined to 996 000 in July-September 2008, 887 000 in July-
September 2010, 878 000 in July-September 2011 and 861 000 in October-December
2012: Statistics South Africa (n 93 above).
98 Chapter 3

example, a better quality of life offered to workers as well as an increased

demand for basic goods.205

On the other hand, setting a single across-the-board minimum wage at

a low level is problematic in that it could reinforce the perception that all
forms of domestic work are similar and unskilled. In fact, domestic
workers perform a wide range of duties including that of housekeeper,
nanny, caregiver, gardener and cook, to name but a few.206 Many of these
duties require relatively high levels of skills and competency which are
recognised as such in industries outside the domestic sector. A 2001 study
by the Community Agency for Social Enquiry (CASE)207 of the training
needs of domestic workers revealed that those workers who acquired more
skills or received some form of formal training were ultimately likely to be
placed in charge of household management.208 The majority of employers
and domestic workers participating in the study also agreed that different
wage levels for different skills would be justified.209

The recognition that there are different values to be attached to

different skills levels in domestic work is implicit in the call for the
‘professional development’ of domestic workers in article 25 of the
Recommendation. A step in this direction was the establishment of the
Domestic Workers Skills Development Project, a pilot project funded by
the National Skills Fund in terms of the Skills Development Act210 during
1999-2002, which aimed to enable domestic workers ‘to change their lives
and circumstances’ by increasing their skills levels.211 Further research is
required to analyse the skills development needs of the sector in a context
of ‘decent work’. However, SD 7 and the South African legislative
framework clearly fall short of the developmental vision of the ILO’s
decent work agenda by locking domestic workers into a paradigm of
unskilled, low-paid work.

205 NALEDI (n 202 above) 11-12.

206 Oxfam & Kalayaan ‘The new bonded labour: The impact of proposed changes to the
UK immigration system on migrant domestic workers’ (2008) 10. See also discussion
of ‘domestic work’ in part 5.2.1 of this chapter (above).
207 ‘Results of a survey concerning domestic workers and their employers’ conducted by
the Community Agency for Social Enquiry (CASE) as commissioned by the
Department of Labour and German Technical Co-operation (May 2001) http://
www.case.org.za/~caseorg/images/docs/survey_on_domestic.pdf (accessed 11 Dec-
ember 2012).
208 CASE survey (n 207 above) 30.
209 CASE survey (n 207 above) 31.
210 Skills Development Act 97 of 1998.
211 Analysed in TS Wessels ‘The development impact of the domestic workers skills
development project on its participants’ MA thesis, University of South Africa, 2006
http://uir.unisa.ac.za/handle/10500/1720 (accessed 11 December 2012).
 Implementing domestic workers’ labour rights within transformative constitutionalism 99

5.2.9 Communication of terms and conditions of employment

Article 7 of the Convention stipulates that domestic workers must be

informed about the terms and conditions of their employment in an
understandable manner, preferably through a written contract of
employment, which should include information on key terms such as the
commencement date of employment, the calculation of remuneration,
hours of work, paid annual leave, daily and weekly resting periods, the
duration of the contract and any terms relating to its termination, including
the relevant notice period. The Recommendation adds that hours of work
must be accurately recorded and made available to the domestic
worker,212 while member countries should consider developing practical
guidelines in this respect.213

Although the Constitution does not deal expressly with the

communication of terms and conditions of employment, providing
employees with such information clearly forms an integral aspect of the
right to fair labour practices in that ignorance by the worker of his or her
rights and duties, which are deemed to be created by agreement, is
incompatible with fairness in employment or the notion of decent work.
The right of workers to such information is equally implicit in the right of
access to information held by another person that is required for the
protection of any right.214

The BCEA and SD 7 accordingly require employers to provide

domestic workers with written particulars of terms and conditions of
employment at the commencement of employment.215 The list of
particulars expressly or implicitly covers virtually the same ground as that
contained in article 7 of the Convention.216 Also in keeping with article 7,
the employer must ensure that these written particulars of employment are
explained to the worker in a language and manner that the worker
understands.217 Save for the reservation already noted,218 SD 7 thus seems
to give full effect to the requirements of Article 7.

Having said that, neither article 7 nor SD 7 expressly requires

agreement between the employer and worker as the source of the terms and

212 Recommendation, art 8(1).

213 Recommendation, art 8(2).
214 Constitution, sec 32(1)(b).
215 BCEA, sec 29, adapted to the employment context by SD 7 clause 9(1).
216 SD 7, clause 9(1). One noteworthy difference is that art 7 stipulates information about
‘the terms of repatriation, if applicable’. The fact that it is extremely difficult for non-
South Africans to obtain employment as domestic workers may explain this hiatus in
SD 7. See Chapter 6 below for a fuller discussion.
217 See (n 216 above) 32 clause 9(2). A pro forma written particulars of employment and
job description is attached to SD 7, which is available free of charge to any employer
and/or domestic worker.
218 Ie, the exclusion of workers working less than 24 hours per month for an employer: see
(n 72 above).
100 Chapter 3

conditions of employment that are communicated to the worker.219 The

point may seem moot in that such agreement, embodying the terms of the
written particulars, would almost certainly be inferred from the latter.
However, the curious and deliberate avoidance of requiring any
agreement, whether verbal or in writing, makes it possible to interpret
clause 9 as authorising the employer to decide unilaterally on terms and
conditions and leaving the worker no option other than formal agreement
or rejection. Such an interpretation, needless to say, would be contrary to
the spirit of decent work and social justice and should be expressly
excluded.

A further problem is signalled by the fact (as discussed in Chapter 5

below) that non-compliance with SD 7 most frequently appears to involve
non-compliance with clauses 6 and 9 (providing written information
concerning pay and particulars of employment). This suggests that, despite
formal implementation, actual implementation with article 7 is deficient in
that the manner in which clauses 6 and 9 give effect to its requirements
may be need to be reconsidered.

5.2.10 Decent living conditions in the household dwelling

A significant number of domestic workers reside on their employer’s

premises and presumably work full-time for that employer.220 This may be
seen as part of their remuneration. In many cases, with ‘live-out’ as well as
‘live-in’ workers, food is also provided as part of remuneration.
Accommodation and food provided thus play a significant part in
establishing the worker’s quality of life and creating an environment of
decent work.

Accommodation

Convention 189 states that domestic workers who reside in the household
must be provided with decent and private living conditions.221 They must
also be free to reach agreement with their employer’ whether to reside in
the household and, if they do so, to leave the household during periods of
rest or annual leave.222 These provisions, Le Roux suggests, ‘could be read

219 The ‘sample contract’ provided on the website of the Department of Labour is in fact a
pro forma Written Particulars document, to be signed by the employer; only
‘acknowledgement of receipt’ is required from the worker: https://www.
labour.gov.za/documents/forms/basic-conditions-of-employment/sample-domestic-
worker-employment-contract (accessed 7 March 2013). Art 7 creates the same
uncertainty by its ambiguous reference to ‘written contracts’.
220 Two surveys respectively reflect 36% and 41% of domestic worker respondents living
on their employers’ premises: CASE survey (n 207 above) and African Response
Survey (n 91 above).
221 Art 6.
222 Art 9. The express incorporation of the requirement of agreement in art 9 is in marked
contrast to its omission in art 7 (above).
 Implementing domestic workers’ labour rights within transformative constitutionalism 101

as a clarification of what the right to have access to adequate housing in

section 26 of the Bill of Rights might mean in the case of live-in domestic
workers with no other accommodation’.223 Similarly, section 14 of the Bill
of Rights creates a right to privacy for domestic workers, which is
amplified by article 17 of Recommendation 201, explaining in some detail
the quality of accommodation implied by the criterion of decent work.
This may be seen as an illustration of the fact, noted by Le Roux, that the
Bill of Rights in general has horizontal as well as vertical application.224

Neither the BCEA nor SD 7 contains any provisions dealing

specifically with the standard of accommodation to be provided to live-in
domestic workers where so agreed between employer and worker. SD 7
permits an employer to deduct a maximum of 10 per cent from a worker’s
wage for accommodation provided it is weatherproof, generally kept in a
good condition and meets other basic requirements.225 The implication is
that no deduction may be made for accommodation that fails to meet these
criteria, but no obligation is placed on employers to meet any specific
criteria. This is clearly contrary to the letter and spirit of the Convention as
well as the Bill of Rights.

Section 26(3) of the Bill of Rights goes on to state that ‘[n]o one may
be evicted from their home, or have their home demolished, without an
order of court made after considering all the relevant circumstances’. This
would offer some protection to live-in domestic workers, for whom
security of accommodation must constitute a significant aspect of their
quality of life. The fact that such accommodation is normally subject to the
worker’s continued employment, however, introduces a source of
insecurity going further than the loss of employment itself. The BCEA
accordingly extends limited protection against eviction to live-in
employees whose services are terminated prematurely,226 which is restated
by SD 7 in respect of domestic workers (with incorrect references).227

This protection, however, falls short of that proposed by

Recommendation 201: in all cases where employment is terminated by the
employer for reasons other than serious misconduct, it suggests, ‘live-in
domestic workers should be given a reasonable period of notice and time
off during that period to enable them to seek new employment and
accommodation’.228 It is submitted that such requirements are consistent
with the standards of decent work and social justice and should be

223 See part 3.5 of Chapter 2 (above). Sec 26(1) states: ‘Everyone has the right to have
access to adequate housing’.
224 See part 3.12 of Chapter 2 (above). For more detailed discussion see DM Chirwa ‘The
horizontal application of constitutional rights in a comparative perspective’ (2006) 10
Law, Democracy & Development 21 37ff.
225 SD 7, clause 8(b).
226 BCEA, sec 39.
227 SD 7, clause 26(1).
228 Recommendation, art 18.
102 Chapter 3

incorporated in the regulatory framework applicable to domestic workers

in South Africa.229

Food

Within the decent work paradigm, food provided to domestic workers as

payment in kind should be ‘of good quality and sufficient quantity,
adapted to the extent reasonable to the cultural and religious requirements,
if any, of the domestic worker concerned’.230 The Constitution sets a more
basic minimum standard, stating that everyone has the right to ‘sufficient
food and water’.231 As Le Roux points out, this right does not serve merely
‘as a constitutional guarantee against starvation’232 and must also be given
content in the domestic sector within the framework of decent work. The
Recommendation, Le Roux concludes, ‘provides valuable indications of
how this concretisation of the right might proceed domestically’.233

Both the BCEA and SD 7 recognise food as a possible form of payment

in kind, and SD 7 further prohibits an employer from receiving any
payment or making any deduction from the wages of a domestic worker,
in respect of food supplied to the worker whilst at work.234 However,
neither SD 7 nor the BCEA lays down any requirements in respect of the
standard of food to be provided.

5.2.11 Work-life balance and family responsibility

Closely linked to the living conditions experienced by live-in workers is the

question of their work-life balance. South Africa has not yet ratified the
Workers with Family Responsibilities Convention 156 of 1981.
Recommendation 201, however, calls on member states to address this
issue in respect of domestic workers235 and also to ensure that the working
hours of domestic workers under the age of 18 are limited to ensure
adequate time for family contact.236 Similarly, the Bill of Rights
guarantees the right of every child to family or parental care and states that
‘[a] child's best interests are of paramount importance in every matter

229 The principle of allowing retrenched employees time off to seek alternative
employment is well established in South African labour law: see Engineering Industrial
& Mining Workers Union & Another v Starpak (Pty) Ltd (1992) 13 Industrial Law Journal
655 (IC) 658 where it is described as ‘one of the important rights of a retrenched
worker’ which ‘should be given without loss of pay’. In practice it is often granted by
larger employers and sometimes regulated by collective agreement, but is not required
by law.
230 Recommendation, art 17 (d).
231 Constitution, sec 27(1)(b).
232 See part 3.15 of Chapter 2 (above).
233 As above.
234 SD 7, clause 7(1)(d).
235 Recommendation, art 25(1)(b).
236 Recommendation 35, art 5(2)(a).
 Implementing domestic workers’ labour rights within transformative constitutionalism 103

concerning the child’.237 Furthermore, as Le Roux points out, the

Constitutional Court has ‘distilled from the right to dignity a right to be
with one’s family’.238

Apart from the provisions for leave and rest periods (noted above) and
limited provision for family responsibility leave,239 the BCEA and SD 7 do
not address these issues. In the ordinary course, therefore, the right of a
live-in domestic worker to be with her or his family or children will depend
entirely on the permission of the employer. This is as it has traditionally
been, also under apartheid. The law is thus in need of change to give effect
to the above-mentioned constitutional rights and principles of decent work
in this neglected sphere.240

5.2.12 Access to justice

Article 16 of the Convention requires that domestic workers have access to

courts and other dispute resolution mechanisms not less favourable than
those available to workers generally, while article 17 calls for the
establishment of effective and accessible complaint and compliance
mechanisms.

The first line of compliance in South Africa is provided by the

administrative enforcement procedure created by Chapter 10 of the BCEA.
The effect is that all rights regulated by SD 7 can, at least in theory, be
enforced by the inspectorate of the Department of Labour if a complaint
about non-compliance is lodged with the Department.241 Beyond this,
section 34 of the Bill of Rights confers an equal right of access to justice on
‘everyone’.242 We have seen that the LRA gives effect to this right in the
employment field by giving all workers the same right of access to the
CCMA and the Labour Court. Similarly, domestic workers have the same
rights as all other citizens of access to the lower and superior courts and
tribunals. We have also seen that domestic workers make ample use of
their right of access to the CCMA in defending their right not to be unfairly
dismissed.

237 Constitution, secs 28(1)(b) and (2).

238 Dawood & Another v Minister of Home Affairs & Others; Shalabi & Another v Minister of
Home Affairs & Others; Thomas & Another v Minister of Home Affairs & Others 2000 (8)
BCLR 837 (CC); see part 3.14 of Chapter 2 (above).
239 Clause 21 of SD 7 entitles a domestic worker who has been employed for longer than
four months, and works at least four days a week, to five days’ leave per 12 months for
specific reasons such as childbirth, illness of a child or the death of a spouse, life
partner or close family member.
240 In general, see L Dancaster & M Baird ‘Workers with care responsibilities: Is work-
family integration adequately addressed in South African labour law?’ (2008) 29
Industrial Law Journal 22.
241 The enforcement procedure is discussed in Chapter 5 below.
242 See part 3.11 of Chapter 2 (above).
104 Chapter 3

There are, however, areas of concern. It has been noted that unfair
dismissal disputes form the vast majority if not the sum total of disputes

referred to the CCMA by domestic workers.243 The reason seems clear: the
intimate and highly unequal nature of the domestic employment
relationship discourages workers from seeking legal remedies for
violations of their rights in the course of the employment relationship and
only leaves them free to do so once the employer has terminated their
employment. This points at a significant shortcoming in the labour dispute
resolution system from the standpoint of domestic workers and others in
similarly precarious forms of work.

Secondly, the cost of litigation makes it practically impossible for a

domestic worker to pursue a dispute in any forum other than the CCMA
and the Small Claims Court.244 As noted already, this largely prevents
domestic workers and other unorganised workers from seeking remedies
for automatically unfair dismissal or unfair discrimination unless the
employer consents to arbitration by the CCMA.245 While the same
barriers confront all unorganised workers,246 it must be concluded for
present purposes that the implementation of domestic workers’ rights of
access to justice is incomplete.

5.2.13 Private employment agencies

Article 15 of the Convention calls on member states to effectively protect

domestic workers recruited or placed by private employment agencies
against abusive practices by:

• determining the conditions governing the operations of such agencies;

• ensuring that adequate mechanisms exist for the investigation of
complaints concerning the activities of agencies;
• adopting measures to provide adequate protection for domestic workers
recruited or placed by agencies; and
• taking measures to ensure that fees charged by agencies are not deducted
from the remuneration of domestic workers.

Article 23 of Recommendation 201 further urges member states to

promote ‘good practices’ by agencies in relation to all domestic
workers.247

243 See part 5.2.7.1.2 of this chapter (above).

244 ‘Natural persons’ can claim a large range of civil remedies in the Small Claims Court,
including payment of amounts up to R12 000, with a minimum of legal formality.
Legal representation is not permitted: sec 7(1), Small Claims Court Act 61 of 1984.
245 LRA, sec 141; EEA, sec 10(6).
246 In practice, the vast majority of cases in the Labour Court involving individual
employees are brought on their behalf by trade unions with the necessary resources.
 Implementing domestic workers’ labour rights within transformative constitutionalism 105

As noted in Chapter 1,248 domestic workers employed by agencies or

‘temporary employment services’ (TES, also known as labour brokers) in
South Africa are in a different position from workers employed by
individual employers. At least some agencies are formal enterprises whose
employees are in a similar position to those employed by agencies in other
sectors. As in many countries, however, there is an ‘unhappy fit’ between
the existing labour law framework and this form of employment.249

One problem is the definition of ‘workplace’ in the LRA as ‘the place

or places where the employees of an employer work’.250 The essence of
agency work is that workers do not work at the workplace of their
employer (specifically, the TES or labour broker)251 but at the workplaces
of their employer’s clients.252 As a result they are practically excluded from
exercising the organisational rights provided for by the Act, which are
acquired in the ‘workplace’ of the employer, and to that extent prevented
from engaging in collective bargaining with their de facto employers.
Perhaps even more problematic for domestic workers employed by
agencies, however, are the implications of their peculiar employment
relationship on their protection against unfair dismissal and unfair labour
practices. Their statutory remedies lie exclusively against their employer
(the TES) even though they work under the discipline and control of their
employer’s client, against whom they have very limited legal recourse.253

For these and other reasons it is widely accepted that agency workers’
constitutional right to fair labour practices is not adequately provided for
in legislation and in 2010 legislation was proposed for the first time to
regulate this form of employment comprehensively.254 After fundamental
revision the Bill was redrafted in 2012 and at the time of writing is being
considered by Parliament. When enacted it may be expected to give effect
to the requirements of article 15 of the Convention and section 23 of the
Constitution.

247 In doing so the ‘principles and approaches in the Private Employment Agencies
Convention, 1997 (No 181), and the Private Employment Agencies Recommendation,
1997 (No 188)’ should be taken into account.
248 See part 8 of Chapter 1 (above).
249 P Benjamin ‘To regulate or to ban? Controversies over temporary employment
agencies in South Africa and Namibia’ in K Malherbe & J Sloth-Nielsen (eds) Labour
Law into the Future: Essays in honour of Darcy du Toit (2012) 189 199.
250 LRA, sec 213.
251 Sec 198(2) of the LRA provides that ‘a person whose services have been procured for
or provided to a client by a temporary employment service is the employee of that
temporary employment service, and the temporary employment service is that
person’s employer’. Clause 29(1) of SD 7 likewise states that ‘a domestic worker whose
services have been provided by an employment service is employed by that
employment service … if the employment service pays the domestic worker’.
252 See LRA, sec 198(2); EEA, sec 57; and BCEA, sec 82 for instances where the TES and
the client can be held jointly and severally liable for statutory violations. Protection
against unfair dismissal is not included.
253 For more in-depth discussion, see the sources referred to in n 64 above.
254 Employment Services Bill, 2010.
106 Chapter 3

6 Addressing shortcomings in the labour law

framework

6.1 The importance of sector-specific regulation

This chapter has engaged with a wide range of rights and values reflected
in Convention 189 and the South African Bill of Rights and their
translation into practice in the domestic sector by means of labour
legislation. It has, of necessity, only been an introductory discussion; more
research is obviously needed on some issues. But even this limited
overview has underlined two important propositions which, it is
suggested, are fundamental to further regulatory development in the
sector.

First, it has underscored the premise from which the chapter started,
that domestic work is both ‘work like any other, and … work like no other’,
and the central conclusion that flows from this:255

Domestic work requires specific, effective laws and regulations. It means

acknowledging the personal character of the work and the context in which it
takes place, while reaffirming its compatibility with the employment
relationship.

Secondly, there are a number of shortcomings in the existing framework of

labour rights which need to be addressed in order to comply fully with
Convention 189 and the Bill of Rights. Some of the most important of
these are explored in more detail in Chapters 4 (access to social security),
5 (compliance and enforcement), 6 (transnational migration) and 7
(freedom of association, collective bargaining and empowerment). Other
problem areas are addressed in the remaining part of this chapter with a
view to laying a basis for appropriate development of the regulatory
framework.

In doing so there is much to be learned from regulatory models in other

countries.256 The ILO has identified 38 jurisdictions where, in addition to
general labour legislation, regulation specifically applicable to the

255 ILO Report (n 1 above) para 47. The reference to ‘employment relationship’ should be
read in the broader sense suggested in part 9 of Chapter 1 and part 5 of Chapter 2
(above).
256 It is, however, important to bear in mind that institutions rooted in specific social
conditions can seldom be transplanted; rather, they can provide inspiration for seeking
equivalent solutions under different conditions. Cf B Hepple ‘Can collective labour law
transplants work? The South African example’ (1999) 20 Industrial Law Journal 1; SL
Willborn ‘Onward and upward: The next twenty-five years of comparative labor law
scholarship’ (2003-2004) 25 Comparative Labor Law and Policy Journal 183.
 Implementing domestic workers’ labour rights within transformative constitutionalism 107

domestic sector, such as SD 7, has been enacted.257 Further research is

needed to unpack the lessons of this field of study that could inform policy-
making in South Africa. But even a brief overview is instructive: it
indicates that, as with SD 7, regulation of domestic work is for the most
part concerned with basic conditions of employment.258 This is probably
not accidental. Exploitation in the form of long hours, low wages and
abusive treatment in the work situation presents the ugliest and most
obvious consequence of the unprotected nature of domestic work which
cries out most urgently for correction.

But, as we have seen, the rights deficit of domestic workers is not

limited to the workplace; rather, it should be understood as a consequence
of other, less obvious gaps and disparities in the implementation of their
basic rights across a wide spectrum ranging from lack of opportunity to
engage in collective bargaining to lack of access to professional training.
What is needed, in other words, is a set of instruments259 equivalent to SD
7 designed to regulate the full range of rights over and above minimum
working conditions which domestic workers are effectively denied because
existing regulatory frameworks are not designed to engage with the needs
created by the unique nature of their working environment. Regulatory
precedents from other countries that have embarked on this path-breaking
assignment will therefore be of special interest from a South African point
of view.

What follows should be read in conjunction with the discussion in part

5 (above); for the sake of brevity the references contained there will not be
repeated.

6.2 Scope of legislation

The first problem noted above was the exclusion of workers who cannot
prove the existence of an ‘employment’ relationship from protection in
terms of the LRA and the EEA.260 This could be overcome relatively
simply by defining ‘domestic worker’ in non-technical terms, so as to

257 These include 12 states in Latin America and the Caribbean, 11 in Western Europe, 8
in Africa and 5 in Asia as well as two states of the USA. In a number of countries,
particularly in the Middle East, domestic workers are excluded from general labour
legislation. See ILO Report (n 1 above) Appendix.
258 But not entirely; other issues that are regulated in certain countries include dismissal
and career development. See, eg, the Austrian Act Governing Domestic Help and
Domestic Employees (BGBl Nr 235/1962).
259 By this is meant regulations, collective agreements, determinations or other
appropriate forms of regulation by existing structures or structures yet to be created,
involving a process of engagement between the parties (see Chapter 1 part 9 above).
260 The inclusion of ‘independent contractors’ in the definition of ‘domestic worker’ in SD
7 (clause 1(1)(b)) probably disposes of the problem for practical purposes but does so
by introducing a second technical inquiry. The approach suggested below may be
preferable for this reason.
108 Chapter 3

include any person performing domestic work for a livelihood, in special

instruments applicable to this sector.

The blanket exclusion of workers working less than 24 hours per

month ‘for an employer’ raises the more difficult question of where to draw
the line. A person cooking for a hobby is obviously not a domestic worker.
Article 2 of the Convention sets out a process for addressing this question.
It calls on member states to engage with ‘the most representative
organisations of employers and workers’ as well as organisations
representative of domestic workers and employers of domestic workers to
consider which categories of workers, if any, should be excluded wholly or
partly from the scope of the relevant regulations. It then specifies that such
exclusion should be limited to categories of workers (a) who are ‘otherwise
provided with at least equivalent protection’261 or (b) in respect of which
‘special problems of a substantial nature’ arise.

The first criterion is factual in nature. The second implies carefully

sifting through the provisions contained in the instrument in question in
order to decide where and why such problems exist. In the case of SD 7 it
would mean identifying any requirements which are genuinely
inappropriate within a part-time work relationship involving a limited
number of hours per week or month and whether there are ways of
accommodating workers in that position. Such an approach, it is
suggested, would be more consistent with the objectives of decent work
and social justice than blanket exclusion based on an arbitrary number of
hours.

6.3 Access to justice

A number of shortcomings in the implementation of basic rights in the

domestic sector, noted above, relate not so much to the content of the right
in question as to the means of enforcing it. Protection against unfair
discrimination, for example, is framed in comprehensive and theoretically
watertight terms which leave no legal scope for discrimination on any
prohibited ground.262 In practice, however, various barriers exist to
invoking such protection, making it difficult or impossible for a domestic
worker to seek a remedy in practice.

261 The exclusion from SD 7 of domestic workers employed on farms, or covered by

another sectoral determination or bargaining council agreement (see clause 2 of SD 7)
may be tested against this criterion.
262 This leaves out of account the ambiguity created by certain judgments in which the
existence of a nebulous category of ‘fair’ discrimination on prohibited grounds has
been suggested, in breach of the prohibition of all discrimination required by ILO 111
of 1958. For discussion, see D du Toit ‘The prohibition of unfair discrimination:
Applying sec 3(d) of the Employment Equity Act 55 of 1998’ in OC Dupper & C
Garbers (eds) Equality in the workplace: Reflections from South Africa and beyond (2009)
 Implementing domestic workers’ labour rights within transformative constitutionalism 109

The first barrier is presented by those provisions of the LRA and EEA
which require certain categories of disputes, including unfair
discrimination and automatically unfair dismissal disputes, to be
adjudicated by the Labour Court if conciliation fails. In practice this
deprives the vast majority of domestic and other unorganised workers of
the possibility of pursuing such disputes. The problem could, however, be
addressed relatively simply by creating alternative mechanisms for the
resolution of such disputes where court proceedings are impracticable; for
example, through referral to arbitration. Thus, the Employment Equity
Amendment Bill of 2012 proposes that disputes involving sexual
harassment, as well as unfair discrimination disputes where the
complainant earns less than a prescribed amount, may also be referred to
arbitration.263 It is suggested that a similar provision would be appropriate
in the case of disputes involving an automatically unfair dismissal.

The fact that virtually all disputes referred to the CCMA by domestic
workers are unfair dismissal disputes, however, points at the exceptional
difficulties presented to a domestic worker to pursue a dispute against an
employer – for example, concerning an alleged unfair labour practice or
discrimination – whilst continuing to work for that employer. Obstacles
presented by technical legal requirements and lack of engagement by
employers have also been noted. ‘Effective access’ to courts or other
dispute resolution mechanisms as envisaged by article 16 of the
Convention calls for more creative thinking on how these obstacles can be
overcome. The question is explored more fully in Chapter 5. In general, the
intimate nature of domestic work suggests the need for an approach based
primarily on conciliation and mediation of disputes, with a minimum of
legal formality and enforcement as a last resort, rather than the adversarial
procedures that are typical of labour dispute resolution systems.264 It
should also be reiterated that problems of access to justice are not confined
to domestic workers and that any remedies that are developed should be
accessible to all workers faced with similar barriers. To the extent that such
exclusion is in the final analysis a consequence of social inequality, it is
appropriate to bear in mind the broader context sketched in this regard by
the World Conference against Racism:265

New and innovative methods and procedures of conflict resolution,

mediation and conciliation between parties involved in conflicts or disputes

263 Employment Equity Act Bill, clause 4. Retrenchment disputes involving a single
employee, which before 2002 would have had to be referred to the Labour Court, may
also be referred to arbitration: LRA, sec 191(12).
264 In Jordan, eg, the Ministry of Labour must ‘[s]ummon the householder and the worker
to the Ministry to reach an amicable settlement of the complaint’: Regulation No 90/
2009 of Domestic Workers, Cooks, Gardeners And Similar Categories Official Gazette
No 4989 dated 1 October 2009.
265 Declaration of the World Conference against Racism, Racial Discrimination,
Xenophobia and Related Intolerance, Durban, 31 August to 8 September 2001, para
163(g).
110 Chapter 3

based on racism, racial discrimination, xenophobia and related intolerance

should be explored and, where possible, established.

6.4 Lack of clarity as to required standards

Lack of clarity in South African legislation as to the content of various

rights emanating from Convention 189 has been noted, amounting in
effect to a failure to stipulate the minimum criteria of decent work as
reflected in the Convention and amplified in the Recommendation. This
applies, for example, to the protection of domestic workers against
unjustifiable medical testing. Given the highly specific conditions of the
sector, it is submitted that guidelines are needed as to when or for which
purposes workers may be required to undergo such testing. Likewise, to
give adequate effect to the protection of children aged between 15 and 18,
guidelines are needed to explain what is meant by activities that are
‘inappropriate’ to the child’s age or places the child’s well-being,
education, physical or mental health or spiritual, moral or social
development at risk.266 Systematic measures would furthermore be needed
to make employers and workers aware of what is expected of them and
what they are entitled to.

6.5 Protection against violence and abuse

The inadequacy of the general remedies of criminal and civil law as the
sole means of protecting domestic workers against violence and abuse has
been noted, and the possibility of including live-in domestic workers
within the ambit of the Domestic Violence Act has been mooted. This
underlines the need for equivalent protection, based on the conditions of
domestic work, to be designed for all domestic workers. To ensure
compliance with Convention 189, such protection must be ‘effective’. The
Recommendation suggests that this calls for accessible complaints
mechanisms and ensuring that all complaints are investigated and
prosecuted. It further suggests programmes to relocate domestic workers
from abusive households, the rehabilitation of workers who fall victim to
abuse, harassment or violence, and the provision of temporary
accommodation and health care.267

The extent to which South Africa’s health care and social welfare
services already provide such protection should be investigated. It is,
however, submitted that there is a gap between the standard of protection
required by the Convention and that which is available in practice. In
bridging this gap, it is further suggested, the regulatory response should not
be confined to the domestic sector but should as far as possible take into

266 Constitution, sec 28(1)(f); see part 3.1 of Chapter 2 (above).

267 Recommendation, art 7.
 Implementing domestic workers’ labour rights within transformative constitutionalism 111

account the situation of all workers exposed to the threat of violence and
abuse.

6.6 Payment

The greatest single shortcoming in the regulation of minimum wages in

accordance with the criteria set by the Convention and the
Recommendation is the decision by the South African legislature to
establish a single minimum wage at an unskilled level.268 This detracts
from the decent work paradigm by failing to acknowledge more advanced
levels of skills attained by domestic workers. At the same time the
disadvantage of domestic workers is perpetuated by the absence of any
provision for generic skills development in the sector. A submission by the
South African Domestic Service and Allied Workers Union (SADSAWU)
to the Department of Labour argued that there was ‘a special responsibility
on government to take proactive measures to give effect to its
constitutional responsibilities in this sector’ and identified the necessary
measures as follows:269

(a) [R]ecognition of skills associated with domestic work, also in the form of
differentiated wage levels; and
(b) an effective skills development programme aimed at formalising the skills
required for domestic work, with a view to professionalising domestic work
and establishing it as a skilled occupation like any other.

A noteworthy precedent has been set by the Swiss Regulation on Standard

Work Contracts for Domestic Employees of 2010270 in which
differentiated minimum wages are determined for workers with different
levels of skill.271 More research is needed to establish appropriate skills
levels in the South African context and design training programmes for
domestic workers to ‘enhance their professional development and
employment opportunities’. Without this, it is submitted, there can be no
substantive compliance with the developmental objectives of the decent
work agenda and the Bill of Rights.

268 Oxfam & Kalayaan (n 206 above) 31.

269 SADSAWU Submission to the Department of Labour on Domestic Worker Wages
and Conditions of Employment (September 2010) unpublished 3. The submission was
endorsed by Social Law Project, Labour Research Service, International Labour
Research and Information Group, Black Sash and COSATU.
270 Verordnung über den Normalarbeitsvertrag für Arbeitnehmerinnen und Arbeitnehmer in der
Hauswirtschaft, 20 October 2010.
271 Ie, ‘untrained workers’, ‘untrained workers with four years of professional experience
or with two years’ training’, and ‘workers with three years’ training’: art 4.
112 Chapter 3

6.7 Communication of terms and conditions of employment

Two problems were noted in the provisions relating to the employer’s duty
to ‘communicate’ the terms and conditions of employment to the worker
in writing: first, the ambiguity in SD 7 as to how those terms and
conditions are arrived at and, secondly, the fact that this one of the
requirements of SD 7 that employers most frequently fail to comply with
in practice. The first problem could be remedied very easily by inserting the
word ‘agreed’ before ‘terms and conditions of employment’.272 The
second problem, it is submitted, would require more engagement to
establish the reasons for non-compliance and possible ways of addressing
them. Part of the difficulty, indeed, may be precisely the fact that a duty is
imposed on the employer to provide such written particulars ex post facto
‘when the domestic worker starts work’.273 If completion of the written
particulars were to be required at the time of entering into the agreement
and signed by both parties, it could serve the additional purpose of
ensuring a clearer mutual understanding of the parties’ reciprocal rights
and duties.

6.8 Decent living conditions in the household dwelling

A number of grey areas were noted in the protection extended to live-in

domestic workers, arising from the lack of specificity in the provisions of
the BCEA and SD 7 by which the underlying constitutional rights are
translated into practice. To overcome these shortcomings it is submitted
that at least the following guidelines offered by Recommendation 201
should be implemented:

• The standard of accommodation and the quality of food provided to live-in

domestic workers should be set out in more detail, with reference to
workers’ cultural preferences. Although this should not be interpreted as
placing any unreasonable demands on the employer, the multicultural
composition of South Africa’s population makes it important for
employers and workers at least to address issues such as these and seek to
arrive at mutually acceptable agreements.
• Live-in workers should be allowed reasonable time off prior to termination
of their services for reasons other than serious misconduct to seek
alternative employment and accommodation. Although such time off has
been described as a ‘right’ of retrenched workers, it is not required by law
and for this reason it cannot be insisted that all domestic workers should
enjoy this right in order to place them in the same position as ‘workers
generally’. Live-in workers, however, are in a special position in that their
right to housing depends on their employment, which would justify their

272 This would make it clear that such terms and conditions must be agreed on prior to
being communicated in writing and not simply upon presentation by the employer.
273 SD 7, clause 9.
 Implementing domestic workers’ labour rights within transformative constitutionalism 113

entitlement to a right such as this. This applies not only to live-in domestic
workers but to all live-in workers.

6.9 Private employment agencies

It has been noted that the Employment Services Bill of 2012 sets out to
regulate the activities of private employment agencies (or ‘temporary
employment services’, also known as ‘labour brokers’) in a manner that is
likely to meet the requirements of Convention 189.274 In addition, the
Labour Relations Amendment Bill of 2012 proposes additional protection
of employees of temporary employment services which are designed to
remedy the disadvantages arising from the dichotomy between their legal
and de facto employers.275

7 Conclusion

Viewed in isolation, it is possible that the agenda of proposed changes set

out above might be read as no more than a wish list. It is, however,
essential to see it as part of the bigger picture of decent work and the
transformative objectives of the Bill of Rights. Convention 189 calls not
simply for the formal extension of rights to domestic workers but for the
‘effective’ extension of rights; similarly, the Bill of Rights is concerned with
the actual enjoyment of rights. The measures suggested above should be
interpreted accordingly: not simply in a technical legal sense but as means
of transforming the quality of life of domestic workers and unlocking their
full human potential. By the same token, institutional change needs to
follow where existing institutions are incapable of defining or
implementing such measures. Unless these regulatory and institutional
changes take place, many of the rights of domestic workers will continue
to exist on paper only.

This brings us back to the third aspect of the model constructed in

Chapter 2:276 the element of reflexive (or responsive) regulation. It is
simply not possible for many of the changes called for above to be defined
in detail by legislators who are far removed from the scene of action and,
at best, informed at second hand if not selectively of conditions
experienced by domestic workers and possible solutions to problems. To
take just two examples: the standard of accommodation to be provided to
live-in domestic workers, or measures to be taken to prevent the abuse of
domestic workers, cannot be defined without intimate knowledge of

274 Given that the Bill has not yet been finalised, it would be premature to consider its
requirements in detail.
275 LRA proposed sec 198A read with proposed sec 198D. Proposed amendments relating
to the organisational rights of trade unions in the context of agency work are unlikely
to have implications in the domestic sector.
276 As outlined at part 4.5 of Chapter 2 (above).
114 Chapter 3

relevant circumstances. Effective solutions to questions such as these must

involve personal understanding of the issues being addressed in all their
concrete manifestations as well as of responses that can realistically be
expected of employers.

To sum up: this is not to deny the need for observing national priorities
and policy objectives, which the national legislature is able to ensure by
means of an enabling statutory framework for implementing basic
constitutional rights. It is to assert that, within such a framework, domestic
workers and employers themselves are in the best position to implement
those rights in their own working relationships; only they can identify
measures that will work specifically for them.

This raises the need for a structure or structures to make such a process
possible. It presupposes direct representation of domestic workers and
employers at sectoral and, possibly, sub-sectoral levels. It further
presupposes that the relevant structures would be vested with delegated
power to make detailed rules giving effect within the sector to the general
rights extended to all workers. While this might resemble the delegation of
regulatory powers to bargaining councils to be exercised by means of
collective agreements, two major differences are likely. First, promoting
decent work within the domestic sector would involve a broader
jurisdiction than that conferred on bargaining councils.277 It is submitted
that it would need to include all relevant rights created by the LRA, BCEA
and EEA as well as relevant provisions of other statutes278 that are
important to domestic workers but find inadequate practical application in
the sector. The function of sectoral regulatory structures would be to
redefine rules and design mechanisms whereby the purpose of the
provision in question could be achieved within the sector.

The second difference is that it is unlikely that collective agreements as

defined by the LRA279 will serve as the exclusive or primary means of
regulation in the domestic sector. This view is, of course, premised on the
extremely limited level of organisation among workers and employers in
the sector at present and the proven difficulty of developing trade union
organisation of a conventional kind; it does not exclude the possibility and
desirability of appropriate forms of organisation taking root in the sector
which should, amongst other things, participate in collective wage
regulation.280 It would, however, be presumptuous to express opinions as

277 By sec 28 of the LRA.

278 Eg, the Skills Development Act 97 of 1998.
279 Ie, ‘a written agreement concerning terms and conditions of employment or any other
matter of mutual interest concluded by one or more registered trade unions, on the one
hand and, on the other hand –
(a) one or more employers;
(b) one or more registered employers’ organisations; or
(c) one or more employers and one or more registered employers’ organisations’: LRA
sec 213.
280 The question of organisation is discussed more fully in Chapter 7 (below).
 Implementing domestic workers’ labour rights within transformative constitutionalism 115

to forms that regulation might take or, indeed, as to the nature of

regulatory structures and the limits of their jurisdiction. Questions such as
these, it is suggested, belong in the domain of organisations of domestic
workers and employers being developed and still to be developed and their
interaction with the state in the process of designing an appropriate
regulatory framework for the sector.
 4
CHAPTER
IMPLEMENTING DOMESTIC
WORKERS’ SOCIAL SECURITY
RIGHTS IN A FRAMEWORK OF
TRANSFORMATIVE
CONSTITUTIONALISM

Kitty Malherbe

1 Introduction

As was shown in Chapter 3, the precarious nature of domestic work means

that certain gaps exist in the protection of domestic workers by labour law.
But labour law can at best provide protection to workers while they are still
employed (or unfairly dismissed). It cannot provide protection during
major life course transitions, such as between ‘[unpaid] caring and
employment; unemployment and employment; retirement and
employment; precarious and permanent employment’.1 Like most
workers, domestic workers experience many of these ‘transitions’ and,
therefore, there is a need for ‘second-tier’ protection against loss of income
due to social risks such as unemployment, illness and occupational injuries
or events such as maternity. In addition, ‘life-cycle’ protection is required
to provide income security to domestic workers whose ability to earn a
wage ceases after disablement or retirement.2 Such ‘life-cycle’ protection is
generally provided by a country’s social security system, which in South
Africa is administered mainly by the South African Social Security Agency
(SASSA),3 the Department of Labour4 and the Department of Social
Development.5

1 P Benjamin ‘Informal work and labour rights in South Africa’ (2008) 29 Industrial Law
Journal 1579 1588.
2 In line with the 2012 International Labour Organization (ILO) Recommendation
concerning national floors of social protection, adopted at the 101st session of the
International Labour Conference, 2012, Art 4, read with Art 5(b)-(d).
3 SASSA administers all social assistance grants in terms of the South African Social
Security Agency Act 9 of 2004 and the Social Assistance Act 13 of 2004 – see below at
part 2 for a description of South African social assistance.
4 Eg, social insurance benefits for occupational injuries in terms of the Compensation
for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) and unemployment,
illness, maternity and adoption benefits in terms of the Unemployment Insurance Act
63 of 2001 (UIA). See below at part 2 for a discussion of South African social
insurance.
5 The provision of residential or community-based care for older persons is regulated in
terms of the Older Persons Act 13 of 2006.

117
118 Chapter 4

The International Labour Organization’s (ILO) Decent Work

Agenda6 must be understood as incorporating such ‘second-tier’ and ‘life-
cycle’ protection.7 One of the strategic objectives in implementing the
Decent Work Agenda is the extension of social protection in order to8
promote both inclusion and productivity by ensuring that women and men
enjoy working conditions that are safe, allow adequate free time and rest,
take into account family and social values, provide for adequate
compensation in case of lost or reduced income and permit access to
adequate healthcare.

In particular, Ghai argues, social protection as part of the Decent

Work Agenda should ‘address the needs of vulnerable groups such as
orphaned or abandoned children, single mothers, female-headed
households, widows, old persons in need and the disabled’, in addition to
traditional social security benefits related to sickness, maternity,
unemployment and poverty, as well as benefits for natural disasters, civil
conflicts and economic fluctuations.9

In South Africa the Committee of Inquiry into a Comprehensive

System of Social Security has suggested a broad conceptualisation of social
protection that ‘incorporates developmental strategies and programmes
which are more appropriate for a developing country such as South
Africa’.10 It explains ‘comprehensive social protection’ as follows: 11

Comprehensive social protection for South Africa seeks to provide the basic
means for all people living in the country to effectively participate and
advance in social and economic life, and in turn to contribute to social and
economic development.

Comprehensive social protection is broader than the traditional concept of

social security, and incorporates developmental strategies and
programmes designed to ensure, collectively, at least a minimum
acceptable living standard for all citizens. It embraces the traditional
measures of social insurance, social assistance and social services, but goes
beyond that to focus on causality through an integrated policy-approach
including many of the developmental initiatives undertaken by the State.

Similarly, the ILO recently reiterated that social security is

6 As discussed in part 6 of Chapter 2 and part 5 of Chapter 3 (above).

7 ILO Report of the Director General: Decent work ILC 87th session, Geneva(1999) http://
www.ilo.org/public/english/standards/relm/ilc/ilc87/rep-i.htm (accessed 15 Octo-
ber 2013).
8 ILO ‘Decent work agenda’ http://www.ilo.org/global/about-the-ilo/decent-work-
agenda/lang--en/index.htm (accessed on 31 August 2011).
9 D Ghai Decent work: Objectives and strategies (2006) 14.
10 M Olivier ‘The concept of social security’ in M Olivier et al (eds) Social security: A legal
analysis (2003) 27.
11 Transforming the present – Protecting the future: Report of the Committee of Inquiry into a
Comprehensive System of Social Security for South Africa (March 2002) 41 (the Taylor
Committee Report).
 Implementing domestic workers’ social security rights within transformative constitutionalism 119

an important tool to prevent and reduce poverty, inequality, social exclusion

and social insecurity, to promote equal opportunity and gender and racial
equality, and to support the transition from informal to formal employment.12

Comprehensive social protection, thus, can readily be located within the

framework of the decent work agenda and offers a basis for understanding
the extension of adequate and appropriate social security benefits to
domestic workers and other informal workers as a first step.

To what extent do workers outside formal employment relationships,

including domestic workers,13 have access to such benefits at present?
More than two billion people (approximately one third of the world’s
population) are estimated to be without any formal social security cover,
as social security coverage is usually linked to employment.14 The
situation is significantly worse in Africa. Only an estimated 20 per cent of
all workers in Sub-Saharan Africa are employees, but not all of them are in
formal employment.15 In the case of domestic workers, the ILO notes, lack
of effective regulation leave them ‘without the kind of protection that other
workers enjoy in the formal economy’,16 including social security
coverage. In some cases this is due to their express exclusion from the
scope of application of social protection schemes17 but, more generally, it
arises from the relatively unregulated nature of their employment.18 ‘What
little earning power the impoverished have’, the ILO concludes, ‘is further
suppressed by marginalisation and lack of support systems – particularly
when they are unable to work because of age, illness or disability’.19

Despite this and despite the vision of comprehensive social protection,

social security coverage in South Africa, as in the rest of Africa, still
remains focused predominantly on employment-centred social
insurance20 and is therefore limited mainly to the ‘formally’ employed.21

12 ILO (n 2 above) Preamble.

13 In the discussion that follows, for reasons indicated in part 2 of Chapter 1 (above), the
focus will be on domestic workers in informal working relationships, rather than those
employed by agencies or in terms of formal employment contracts.
14 According to the ILO, lack of access to social security usually forms part of the
definition of informal employment: ILO World Social Security Report 2010/11: Providing
coverage in times of crisis and beyond (2010) 27.
15 ILO (n 14 above) 27. According to this report, instead of a growing number of workers
in developing countries becoming part of formal social security schemes, experience
has shown that ‘the growing incidence of informal work has led to stagnant or
declining rates of coverage. The most vulnerable groups outside the labour force are
women, persons with disabilities and older people who cannot count on family
support and who have not been able to make provisions for their own pensions’ 28.
16 International Labour Organisation (ILO) Decent work for domestic workers Report IV(1)
to the International Labour Conference, 99th session, Geneva (2010) 12.
17 See below at 2.1.1.
18 See below at 2.3.1.
19 ILO (n 14 above) 27.
20 Social insurance and social assistance form the two main branches of social security in
South Africa. See below at part 2.
21 M Olivier ‘Acceptance of social security in Africa’ ISS Regional Conference for Africa,
Lusaka, Zambia, 9-12 August 2005, 5.
120 Chapter 4

Scant attention is paid to social security benefits for workers in the large
part of the South African economy that has remained unregulated and
‘informal’, including domestic work.22 This chapter will examine the
legislative framework in more detail and, more specifically, the degree to
which domestic workers’ constitutional right of access to social security23
– including social assistance and social insurance – is given practical effect.
The analysis is structured around the premise that domestic work is ‘work
like any other; work like no other’.24 It first investigates which social
security schemes in South Africa currently provide coverage for domestic
workers and other workers in the less regulated parts of the economy.
Where it is found that domestic workers are excluded or receive only
limited benefits, three avenues for addressing the weaknesses in the current
regulatory framework are explored:

• Extending current social security measures to domestic workers and

thereby incorporating them into the existing system (thus, treating them
‘like any other’ workers);
• Creating programmes catering particularly for domestic workers and other
workers in relatively unregulated parts of the economy (thus,
acknowledging that their work is ‘like no other’);
• Developing a new, national social security system, inclusive of workers in
less regulated working environments, that is also capable of addressing the
specific challenges of the domestic sector.

As the exclusion of domestic and other informal workers from the scope of
current social security schemes is an international phenomenon, the
challenges experienced in South Africa are discussed against the backdrop
of international and regional labour and social security standards. At the
same time, throughout the chapter, the position of domestic workers is
studied in the broader context of non-standard or informal employment.
Conceptually, the discussion proceeds within the conceptual framework of
‘[a]dvancing domestic workers’ rights in a context of transformative
constitutionalism’, developed in Chapter 2. In particular, the role that the
advancement of the right of access to social security can play as a
transformative strategy is evaluated together with mechanisms whereby an
appropriate regulatory framework can be developed. This chapter thus
uses the same ‘three-dimensional’ model as that proposed in Chapter 3,25
with transformative constitutionalism, decent work and responsive

22 Informal work has constituted approximately 19% of total employment on average

over the last five years: S Davids ‘A comparative analysis of the different measures used
to determine the size of the informal sector of the South African economy’
unpublished M Econ mini-thesis, University of the Western Cape, 2011, Table 4.1,
using Quarterly Labour Force Survey statistics.
23 Constitution of the Republic of South Africa, 1996, sec 27(1).
24 A Blackett ‘Promoting domestic workers’ human dignity through specific regulation’
in A Fauve-Chamoux (ed) Domestic service and the formation of European identity:
Understanding the globalization of domestic work, 16th-21st centuries (2004) 252; ILO (n 16
above) 12.
25 See part 4 of Chapter 3 (above).
 Implementing domestic workers’ social security rights within transformative constitutionalism 121

regulation as its points of reference, in evaluating the implementation of

domestic workers’ social security rights as well as identifying means of
addressing shortcomings in the existing framework.

2 Current social security benefits available to

domestic workers

Section 27(1)(c) of the South African Constitution provides that

‘[e]veryone has the right to have access to … social security, including, if
they are unable to support themselves and their dependants, appropriate
social assistance’. Since ‘social security’ as a concept differs from country
to country, what follows are merely attempts at describing it.

The ILO describes social security as:26

[T]he protection which society provides for its members, through a series of
public measures, against the economic and social distress that otherwise
would be caused by the stoppage or substantial reduction of earnings resulting
from sickness, maternity, employment injury, unemployment, invalidity, old
age and death, the provision of medical care, and the provision of subsidies
from families with children.

This definition is helpful as it provides an inventory of the most prevalent

social risks that workers may face. According to the ILO, domestic
workers globally have historically been excluded from many of these social
security benefits.27

Pieters perceives social security as ‘the body of arrangements shaping

the solidarity with people facing (the threat of) a lack of earnings (i.e.
income from paid labour) or particular costs’.28 This definition is of
importance in the context of domestic work because of the express
reference to ‘solidarity’ with workers in less than secure employment. In
addition, Pieters’s notion of solidarity being ‘shaped’ is relevant to the idea
of the transformation of society through the extension of social security.29

Against this background, the four general components of the social

security system in South Africa are:

(a) Private savings (specifically, people voluntarily saving for contingencies

such as retirement and chronic diseases);
(b) Social insurance;

26 ILO Introduction to social security (1984) 3.

27 ILO (n 16 above) 57.
28 D Pieters Introduction into the basic principles of social security (1993) 2.
29 The use of increased access to social security as a transformative strategy is discussed
below at 5.4.
122 Chapter 4

(c) Social assistance; and

(d) Social relief (specifically, providing short-term assistance to tide people
over a particular individual or community crisis).30

Of these, the two components that are most relevant to domestic workers
are social insurance and social assistance.31 Social insurance is explained
in the White Paper for Social Welfare (White Paper) as joint contributions
by employers and employees to pension or provident funds, or social
insurance covering other events.32 Social insurance schemes are thus
financed by contributions from employers and by or on behalf of
employees. Contribution and benefit rates are often linked to the
employee’s earnings.33 Social assistance, on the other hand, is defined in
the White Paper as non-contributory and income-tested benefits provided
by the state to groups who are unable to provide for their own minimum
needs, such as older persons, people with disabilities and persons raising
vulnerable children.34

2.1 Social insurance benefits for domestic workers

As noted above, social insurance aims to compensate employees for loss of

income due to the occurrence of a social risk such as unemployment or an
event such as maternity. The ideal situation is that social insurance
schemes will provide benefits to persons who were employed prior to the
social risk occurring as well as to self-employed persons, and that social
assistance benefits will be paid to only those persons who had no
opportunity to participate in social insurance schemes. As far as domestic
workers are concerned, this ideal has not been reached. In practice, as
discussed below, many domestic workers are excluded from or receive
only very limited benefits from social insurance schemes.

30 White Paper for Social Welfare GN 1108 in GG 18166 of 8 August 1997, 48. The
White Paper describes social security as including ‘a wide variety of public and private
measures that provide cash or in-kind benefits or both, first, in the event of an
individual’s earning power permanently ceasing, being interrupted, never developing,
or being exercised only at unacceptable social cost and such person being unable to
avoid poverty and secondly, in order to maintain children. The domains of social
security are: poverty prevention, poverty alleviation, social compensation and income
distribution’ at 48. It defines social security as encompassing ‘policies which ensure
that all people have adequate economic and social protection during unemployment,
ill health, maternity, child rearing, widowhood, disability and old age, by means of
contributory and non-contributory schemes for providing for their basic needs. State
social assistance (grants) includes the following four categories of benefits: those
associated with old age, disability, child and family care, and poor relief ’ at 97. For
further discussion see MP Olivier ‘The concept of social security’ in MP Olivier et al
(eds) Introduction to social security (2004) 13-32.
31 Not many domestic workers can afford private retirement savings and medical
insurance. Social relief is made available on an ad hoc basis only.
32 White Paper (n 30 above) 48.
33 ILO (n 26 above) 4. See also Pieters (n 28 above) 5; V Moore et al ‘The concept of
social security’ in MP Olivier (ed) Social security law: General principles (1999) 13-15.
34 White Paper (n 30 above) 48.
 Implementing domestic workers’ social security rights within transformative constitutionalism 123

2.1.1 Safe and healthy working conditions

As mentioned in Chapter 2, one of the rights listed in the Domestic

Workers Convention is the right to the healthy and safe working
environment. Article 18 provides as follows:

Every domestic worker has the right to a safe and healthy working
environment. Each Member shall take, in accordance with national laws,
regulations and practice, effective measures, with due regard for the specific
characteristics of domestic work, to ensure the occupational safety and health
of domestic workers.

In terms of South African common law there is a duty on employers to

ensure that their employees have healthy and safe working conditions.35
Domestic workers, therefore, are entitled to refuse to work with dangerous
equipment or if they are not properly trained, and in theory have recourse
to a delictual remedy arising from the employer’s duty of care should they
be injured. The requirement of proving intent or negligence on the part of
the employer, however, makes this ‘an onerous route to follow’ for an
injured or ill employee.36 Due to this difficulty and the imprecision of the
common law duty to provide safe working conditions, two statutory
measures regulating workplace health and safety have been enacted: the
Occupational Health and Safety Act (OHSA)37 and the Compensation for
Occupational Injuries and Diseases Act (COIDA).38

Domestic workers are included in the scope of OHSA, which has the
promotion of health and safety at work as its main goal.39 OHSA requires
every employer to provide and maintain, as far as is reasonably practicable,
a working environment that is safe and without risk to the health of
employees.40 In addition, employers are required to take all reasonably
practicable steps to establish what actual or potential hazards to
employees’ health and safety exist at the workplace and to eliminate or
mitigate such (potential) hazards.41 Employers are also required to provide
employees with the information, instruction, training and supervision

35 See Nicholson v East Rand Pty Mines Ltd 1910 WLD 235; SAR & H v Cruywagen 1938
CPD 219; Van Heerden v SA Pulp & Paper Industries Ltd 1946 AD 385; Kruger v Carlton
Paper of South Africa (Pty) Ltd 2002 (2) SA 335 (SCA); A van Niekerk et al (eds)
Law@work (2008) 85; J Grogan Workplace law (2009) 56; IC Tshoose ‘Employer’s duty
to provide a safe working environment: A South African perspective’ (2011) 6 Journal
of International Commercial Law and Technology 165.
36 N Smit ‘Employment injuries and diseases and disability in the workplace’ in Olivier et
al (eds) (n 30 above) 325.
37 Act 85 of 1993, replacing the Machinery and Occupational Safety Act of 1983, which
had been preceded by the Factories, Machinery and Building Work Act of 1941.
38 130 of 1993, replacing the Workmen’s Compensation Act of 1941. The first
Workmen’s Compensation Act was enacted in 1914.
39 Preamble of OHSA.
40 Sec 8(1).
41 Sec 8(2)(b) and (d).
124 Chapter 4

necessary to ensure, as far as reasonably practicable, that the workplace

remains healthy and safe.42

Temporary employment services,43 commonly known as ‘labour

brokers’, are excluded as employers in terms of OHSA,44 and as a result
the clients for whom domestic workers placed by labour brokers provide
the service are deemed to be their employers for the purposes of OHSA. It
is therefore the client who is responsible for compliance with health and
safety regulations in the domestic workplace.45

Employers of domestic workers, therefore, have both a common law

duty and a statutory duty to take reasonable precautions to prevent or
reduce accidents.46 However, all accidents cannot be prevented and,
hence, the need exists for a statutory compensation scheme for
occupational injuries and diseases.

Statutory benefits from the Compensation Fund are payable in terms

of COIDA47 to employees or the dependants of deceased employees for
injuries, diseases or death arising out of, and in the course of, employment.
Although the definition of ‘employee’ in section 1 is broad enough to cover
domestic workers, domestic workers employed in a private household are
expressly excluded from the scope of COIDA.48 Section 35 of COIDA

42 Sec 8(2)(e). Most of the other substantive sections of OHSA provide for the
designation of health and safety representatives and the establishment of health and
safety committees. Benjamin concludes that, in common with most occupational
health and safety legislative regimes, the system was designed with standard employees
in large workplaces in mind rather than meeting the needs of informal workers:
P Benjamin Labour market regulation: International and South African perspectives (2005)
11.
43 Defined in sec 198 of the Labour Relations Act 66 of 1995 as ‘any person who, for
reward, procures for or provides to a client other persons –
(a) who render services to, or perform work for, the client; and
(b) who are remunerated by the temporary employment service’.
44 Sec 1.
45 Were it not for the fact that domestic workers are excluded from the scope of COIDA
(discussed below), the responsibility to report occupational injuries to the relevant
authority would have rested with the labour broker in terms of COIDA while resting
with the client in terms of OHSA. See P Benjamin Decent work and non-standard
employees: Options for legislative reform in South Africa Discussion document prepared for
the Department of Labour (2011) 9. Should domestic workers be included in the scope
of COIDA, as is being advocated, this anomaly will need to be addressed.
46 See part 2.3.3 of Chapter 5 (below) for an outline of the current enforcement of OHSA.
47 COIDA provides compensation payments for temporary and permanent disablement
due to occupational injuries or diseases, as well as medical benefits.
48 The definition of ‘employee’ in sec 1 broadly defines an employee ‘as a person who has
entered into or works under a contract of service or of apprenticeship or learnership,
with an employer, whether the contract is express or implied, oral or in writing, and
whether the remuneration is calculated by time or by work done, or is in cash or in
kind’. It is followed by a list of persons expressly included as well as a list of persons
expressly excluded from the scope of COIDA. Apart from domestic workers, the other
excluded categories consist of members of the police and security forces, who are
covered by other statutes, and independent contractors. These exclusions replicate
similar exclusions contained in Compensation for Occupational Injuries and Diseases
Act 130 of 1993’s predecessor, the Workmen’s Compensation Act of 1941, which was
repealed by COIDA.
 Implementing domestic workers’ social security rights within transformative constitutionalism 125

states that the injured or ill employee’s claim against the Compensation
Fund replaces all other claims for damages or compensation arising from
the injury or illness.49 Employees covered by COIDA are therefore barred
from suing their employers for loss of income due to an occupational injury
or disease. As domestic workers are excluded from the scope of application
of COIDA, they have no claim against the Compensation Fund. The fact
that they are thus not prevented from suing their employers at common
law, however, is cold comfort since domestic workers are exactly the type
of vulnerable employees who cannot afford litigation against their
employers that the COIDA system was designed to protect.50

Given that section 27(1)(c) of the Constitution provides for the right of
access to social security, an important point for consideration is whether
the exclusion of domestic workers from the scope of the COIDA system is
a reasonable and justifiable limitation51 of their right of access to social
security in the form of compensation for occupational injuries and
diseases. It can also be questioned whether COIDA, to the extent that it
excludes domestic workers from the scope of the compensation for
occupational injuries and diseases system, can be regarded as a reasonable
legislative measure in terms of section 27(2) of the Constitution to realise
the right of access to social security.52

One of the main justifications advanced for the exclusion of domestic

workers from the scope of COIDA is the intimate nature of the
employment relationship.53 The difficulty of monitoring compliance by
individual employers with legislation has also been cited as a reason.54
However, domestic workers have been included in the scope of application
of labour legislation55 and social insurance legislation, notably the
Unemployment Insurance Act,56 which begs the question whether

49 In terms of sec 35(1): ‘no action shall lie by an employee or any dependant of an
employee for the recovery of damages in respect of any occupational injury or disease
resulting in the disablement or death of such employee against such employee’s
employer, and no liability for compensation on the part of such employer shall arise
save under the provisions of this Act in respect of such disablement or death’.
50 See Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening) 1999 (2)
BCLR 139 (CC) para 12.
51 In terms of sec 36 of the Constitution (the ‘limitation clause’): see n 191 below.
52 The question is underlined by the fact that the other excluded categories (members of
the police and security forces and independent contractors) are either covered by
alternative legislation or are non-employees; in contrast, there is no comparable legal
rationale for the exclusion of domestic workers.
53 For more discussion of the impact of the intimate nature of the domestic employment
relationship on the regulation of that relationship, see Chapter 3 above.
54 P Myburgh et al ‘Employment injuries, diseases and motor vehicle accidents’ in M
Olivier et al (n 33 above) 322. At the level of international standards, art 4(2) of ILO
Employment Injury Benefit Convention 121 of 1964 allows member states the
flexibility to make exceptions in respect of persons whose employment is of a casual
nature and who are employed otherwise than for the purpose of the employer’s trade
or business’, which may include domestic workers.
55 In particular, the Labour Relations Act 66 of 1995 (LRA) and the Basic Conditions of
Employment Act 75 of 1997 (BCEA), discussed in Chapter 3 above.
56 63 of 2001.
126 Chapter 4

employee protection is inherently inappropriate in the domestic

environment and whether individual employers truly would face
insurmountable problems in complying with the requirements of
COIDA.57

Another justification for the exclusion of domestic workers from

COIDA is the incorrect perception of domestic work as ‘safe and non-
threatening’,58 which belittles the need for statutory protection against
injury for domestic workers. The ILO highlights a number of serious risks
faced by domestic workers in their daily tasks as follows:

The work tends to involve a great deal of repetition, bending and reaching,
lifting heavy objects, extremes of heat (cooking, ironing), sharp objects
(knives), handling potentially toxic cleaning products and prolonged exposure
to dust. Vulnerability to these risks may be higher among migrant domestic
workers, with their lack of knowledge of local products and of the local
language.59

Research in the USA has indicated that, compared with industrial

cleaners, domestic workers experience ‘more frequent exposure to
respiratory irritants from chemical cleaners [and] a significantly higher
incidence of physical reactions to using cleaning products’.60 They also
experience ‘higher rates of debilitating musculoskeletal disorders than any
other occupational group in the United States, including workers in coal
mines and steel mills’. In addition, domestic workers work in an isolated
environment and do not have access to advice and assistance from fellow
workers.61 Education of both workers and employers as to the nature of
hazards in the home to minimise them has been suggested as a first step in
addressing the situation.62

It is submitted that the exclusion of domestic workers from the scope

of COIDA is neither justifiable nor reasonable.63 In terms of the test laid
down by the Constitutional Court in Government of the Republic of South
Africa & Others v Grootboom & Others64 one of the criteria for determining

57 See also Joint submission by Social Law Project (SLP) and eight other organisations to
the South African Law Reform Commission on Discussion paper 117: Statutory law
revision: Legislation administered by the Department of Labour, Project 25 (2010). At
the time of writing, the Department of Labour has initiated a process to determine the
feasibility of extending the scope of COIDA to domestic workers: ‘COIDA will be
extended to include domestic workers’ Sabinet Law 6 September 2011 http://
www.sabinetlaw.co.za/labour/articles/coida-will-be-extended-include-domestic-work
ers (accessed 28 February 2013).
58 ILO (n 16 above) 61-62.
59 ILO (n 16 above) 62.
60 P Smith cited in Washington University in St Louis ‘Hidden hazards in the home’ 10
March 2011 http://news.wustl.edu/news/pages/22015.aspx (accessed 23 April
2013).
61 ILO (n 16 above) 62.
62 Smith (n 60 above).
63 Social Law Project submission to South African Law Reform Commission (n 57
above).
 Implementing domestic workers’ social security rights within transformative constitutionalism 127

whether a measure taken by the state to realise a socio-economic right is

reasonable is whether it provides for ‘those whose needs are the most
urgent and whose ability to enjoy all rights therefore is most in peril’.65 A
social insurance system that excludes domestic workers from a statutory
compensation system and leaves vulnerable group of employees such as
domestic workers with no remedy other than instituting costly and onerous
delictual actions against employers66 cannot be regarded as a reasonable
measure taken by the state to realise social security rights.

The exclusion of domestic workers from the scope of COIDA is

furthermore contrary to article 14(1) of the ILO Domestic Workers
Convention67 which requires Member states to ‘ensure that domestic
workers enjoy conditions that are not less favourable than those applicable
to workers generally in respect of social security protection’. Article 14 also
paves the way for ‘responsive regulation’ of domestic workers’ social
security rights by making provision for progressive application of measures
to ensure that domestic workers enjoy similar social security protection to
that of other workers and requiring Member states to consult with ‘the
most representative organizations of employers and workers and, where
they exist, with organizations representative of domestic workers and
those representative of employers of domestic workers’.68 This creates
scope to design processes that are responsive to the needs of domestic
workers, including the need for protection against occupation-specific
hazards, as well as genuine constraints experienced by employers.

2.1.2 Unemployment insurance

As noted above, domestic workers working for an employer for more than
24 hours a month have been covered by the Unemployment Insurance
Act69 since 2002. Such coverage, however, is entirely dependent on
registration of employers with the Unemployment Insurance Fund
(UIF).70 The extent of registration is both unclear and debatable.
According to a Department of Labour publication71 646,225 domestic
employees were registered with the UIF in March 2011.  Given a total

64 2000 (11) BCLR 1169 (CC).

65 Para 44.
66 For an employee to succeed in a delictual action against his or her employer, he or she
would have to prove negligence on the part of the employer or fellow employee.
Myburgh et al (n 54 above) 307.
67 Convention 189 of 2011.
68 Art 14(2). For discussion of the role of domestic workers’ organisations in ensuring the
progressive realisation of domestic workers’ rights, see Chapter 7 below.
69 Workers employed for less than 24 hours per month by a particular employer are
excluded from registration: sec 3(1)(a), UIA; and see the discussion in part 5.1.2 of
Chapter 3 (above).
70 The payment of Unemployment Insurance Fund contributions by employers is
regulated by Chapter 2 of the Unemployment Insurance Contributions Act 4 of 2002.
71 E Netshifhefhe Job Opportunities and Unemployment in the South African Labour Market
April 2010 – March 2011 (2011) 14 http://www.skillzhub.co.za/files/documents/
DoL_Job_skill_MisMatch_ rep2011.pdf (accessed 6 April 2013).
128 Chapter 4

number of 877 000 domestic workers at that point,72 this would mean that
73.7 per cent of domestic workers were registered for unemployment
insurance as at March 2011. Actual UIF data, however, reflected 323 604
registered domestic employees as at November 2010, of whom 143 423
had termination dates and 180 181 were active at that point.73

On this basis, only 20.7 per cent out of a total of 869 000 domestic
workers were registered for unemployment insurance at the end of 2010.74
The latter figure appears more realistic in the light of the overall context of
the sector.75 While certain categories of workers are legally excluded from
registration,76 it is suggested that lack of effective enforcement in a context
of widespread non-compliance by employers is the greatest single factor
accounting for the limited extent of registration.

Domestic workers who are actually registered are entitled to claim

unemployment, illness, maternity and adoption benefits and their
dependents may be able to claim benefits when the domestic worker dies.
Benefits are calculated on a sliding scale ranging from a maximum of 60
per cent of last-earned remuneration for the lowest-paid category workers
to a projected 30.78 per cent for the highest-paid category.77 These are the
only benefits that domestic workers may receive when the relevant social
risks occur. As employer participation in medical aid schemes is voluntary,
and probably very rare, and most domestic workers cannot afford private
health insurance contributions, the illness benefits payable in terms of the
UIA to contributors who become too ill to work78 are the only illness
related benefits that many domestic workers may receive. This applies also
to the maternity benefit payable to female contributors during their

72 Statistics South Africa Quarterly Labour Force Survey: Quarter 1, 2011 (May 2011)
Table D http://www.statssa.gov.za/publications/P0211/P02111stQuarter2011.pdf
(accessed 6 April 2011).
73 Unemployment Insurance Fund database provided by Department of Labour
(unpublished).
74 Statistics SA (n 72 above).
75 It is possible that the much higher percentage reported by the Department of Labour
(above) may include non-active registrations (employees who were no longer
employed) as well as active registrations.
76 Eg, migrant workers are excluded if they are required to leave the country when their
contract of employment is terminated: sec 3(1)(d), UIA. In this respect the UIA may
contravene art 54(1)(b) of the UN International Convention on the Protection of the
Rights of All Migrant Workers and Members of their Families, GA res 45/158 of 18
December 1990, which states that ‘[w]ithout prejudice to the terms of their
authorization of residence or their permission to work and the rights provided for in
articles 25 and 27 of the present Convention, migrant workers shall enjoy equality of
treatment with nationals of the State of employment in respect of … unemployment
benefits … ’. See part 3.3 of Chapter 6 (below) for discussion of the regulation of
migrant domestic workers’ social security rights. See also n 69 above on the exclusion
of workers employed for less than 24 hours per month by a particular employer.
77 UIA, sec 12(2) and (3) read with Schedule 3.
78 UIA, sec 20.
 Implementing domestic workers’ social security rights within transformative constitutionalism 129

pregnancy and immediately after childbirth,79 given that relatively few

domestic workers are likely to receive paid maternity leave.

Unemployment benefits payable upon dismissal are particularly

necessary in the context of the job insecurity many domestic workers are
faced with.80 However, there is one possibly unintended consequence of
the design of the current UIA system as far as benefits payable to workers
in precarious employment, including domestic workers, are concerned. In
terms of the credit system that determines for how long any contributor can
expect benefits, one day’s benefit is paid for each six days employed as a
contributor.81 Domestic workers who are only employed some days of the
week may therefore find it difficult to work enough days to secure a
substantial benefit.82 In practice this means that the amount of benefit to
which they are entitled may be too limited to provide any meaningful level
of income security.

Whether the inclusion of domestic workers as contributors in terms of

the UIA could serve the transformative purposes of the Constitution, it is
suggested, will depend primarily on the extent to which domestic workers’
rates of remuneration can be improved as a result of the measures
suggested in Chapters 3 and 7,83 and the extent to which compliance by
domestic workers’ employers with the UIA can be increased through the
implementation of measures suggested in Chapter 5.84 Over and above
this, however, there is clearly a need to rethink South Africa’s statutory
model for protection against unemployment, given the country’s massive
levels of structural as opposed to cyclical unemployment, for which a
social insurance scheme is clearly inappropriate.85 Although consideration
of this problem in its entirety falls beyond the scope of this study, some of
the measures proposed in the conclusion of this chapter in respect of
domestic workers have wider implications. Ultimately, however, it is trite
that accelerated job creation offers the only sustainable solution.

79 UIA, sec 24. Domestic workers who draw maternity benefits do not forfeit their credits
for unemployment and illness benefits.
80 The ILO states that ‘[i]n periods of financial crisis in particular, domestic workers may
be particularly vulnerable to termination’ (n 16 above) 53.
81 UIA, sec 13(3). The model, in other words, is limited to the objective of compensation
for cyclical (short-term) unemployment; it was not designed to address South Africa’s
overwhelming reality of structural (long-term) unemployment.
82 Eg, a full-time domestic worker who works every Monday for one employer would
have to work for six Mondays before she would get the one day’s worth of benefit.
Unemployment Insurance Fund benefits, in other words, reproduce the disadvantages
arising from precarious (part-time) employment and low remuneration.
83 See part 4 of Chapter 3 (above).
84 See part 3.3 of Chapter 5 (below).
85 There is a large and growing body of literature on the embedded nature of
unemployment and problems of job creation in South Africa. For a seminal study, see
C Simkins & DG Clarke Structural unemployment in Southern Africa (1976). See also
J Baskin ‘South Africa's quest for jobs, growth and equity in a global context’ (1998) 19
Industrial Law Journal 986; H Bhorat ‘Labour market challenges in the post-apartheid
South Africa’ (2004) 72 South African Journal of Economics 940.
130 Chapter 4

2.2 Social assistance available to domestic workers

Social assistance86 is financed from the general revenue of the state with
statutory scales of benefits adjusted to beneficiaries’ needs. The goal of
social assistance is to serve as a guard against deprivation87 and it is paid
only to those who are perceived to be in need of assistance.88 For this
reason, a means test which will take a person’s other income and resources
into account is generally applied. The low wages89 and job insecurity
typical of domestic work leave most domestic workers without the
opportunity to participate in existing social insurance schemes or to
accumulate resources. Consequently, they are relegated to relying on
social assistance if they become disabled or too old to work.

There are a number of grants that domestic workers, depending on

their income levels, may apply for in terms of the Social Assistance Act
(SAA). First, a number of social assistance grants are payable to persons
raising vulnerable children. A domestic worker who is the primary
caregiver of a child under the age of 18 will therefore qualify for the child
support grant provided she or he complies with the means test90 and meets
the other requirements for receipt of the grant.91 Domestic workers may
also qualify for foster child grants payable to foster parents.92

In addition, the parent, foster parent or primary care-giver of a child

who is so severely disabled that he or she needs permanent home care or
support services will qualify for the care dependency grant.93 This grant
will, of course, only be useful to domestic workers from households where

86 White Paper (n 30 above) 6.

87 Olivier et al (n 30 above) 15.
88 Pieters (n 28 above) 6.
89 The ILO report (n 16 above) 7, states that ‘almost by definition the wages of domestic
workers are less than their employers earn on the labour market’. It also states that
‘domestic workers are structurally dependent on the degree to which different
households can afford domestic work – and this may explain the customary low levels
of wages paid to domestic workers and the relative power of employers to force wage
levels downwards’ at 39. According to the Domestic Workers Survey prepared for
UWC by African Response in 2009, only 2% of domestic workers surveyed earned
more than R4 000 per month.
90 See Annexure B, Regulations relating to the application for and payment of social
assistance and the requirements or conditions in respect of eligibility for social
assistance (GN R898 in GG 31356 of 22 August 2008). In terms of the means test, a
primary caregiver earning R2 800 per month or less in 2012 qualified for the grant. As
the minimum wage for domestic workers working for more than 27 hours a week was
set at R1 746 per month in 2012, domestic workers earning the minimum wage would
qualify for the grant.
91 SAA, sec 6, read with reg 6 of GN R898 (n 90 above). ‘Primary caregiver’ is defined as
any person who in fact provides for the basic and daily care needs of the child (SAA,
sec 1); hence, the primary caregiver does not necessarily have to be the child’s parent.
A person who cares for a child in a professional capacity is, however, not deemed to be
a primary caregiver for the purposes of the child support grant: reg 6(1)(d) GN R898 (n
90 above).
92 SAA, sec 1, defines ‘foster parent’ as ‘a person, except a parent of the child concerned,
in whose custody a foster child has been placed in terms of any law’.
93 SAA, sec 7.
 Implementing domestic workers’ social security rights within transformative constitutionalism 131

someone else can provide the care dependent child with full-time care
while the domestic worker is at work (in many cases performing care work
for the employer’s family).94

The SAA also provides for the payment of a disability grant to a person
aged 18 or over who, owing to a ‘physical or mental disability’, is ‘unfit to
obtain by virtue of any service, employment or profession the means
needed to enable him or her to provide for his or her maintenance’.95 The
disability grant will remain particularly important for domestic workers
who become disabled due to a workplace injury for as long as domestic
workers remain excluded from the scope of the compensation for
occupational injury and diseases scheme.96 It is also possible that, due to
the low and infrequent income of many domestic workers, the amount
payable in terms of COIDA, were they to be included in that scheme,
would be less than the amount payable as a disability grant.97

One of the most important social assistance grants for domestic

workers is the older person’s grant, payable to persons aged 60 and older.98
The older person’s grant is means-tested and, therefore, an appropriate
vehicle to provide retirement benefits to persons who were unable to save
for their own retirement. In addition, the older person’s grant has been
credited with a marked increase in disposable income in households where
recipients of the grant reside.99 The older person’s grant is the only
independent income available to domestic workers who reach retirement
age and who, due to sporadic employment and low wages, have not been
able to be members of retirement funds.100 The relative importance of the
older person’s grant is thus due to the limited access of domestic workers
to retirement fund benefits.

The ready access to social assistance benefits by domestic workers in

South Africa is in line with international trends where low wage earners

94 See GN R898 (n 90 above) Annexure D for the means test for the care dependency
grant.
95 GN R898 (n 90 above) reg 3(c) states the inability ‘to enter the open labour market or
to support himself or herself in light of his or her skills and ability to work’ as a
requirement for the disability grant. Applicants or beneficiaries of the grant must not
have refused employment within his or her capabilities or have refused the
recommended medical or other treatment (reg 3(d) and (e)). To qualify for the grant,
the disability must continue for at least six months (reg 3(b)).
96 See part 2.1.1 of this chapter (above).
97 The highest percentage of previous income paid in terms of COIDA is 75% of previous
earnings (for 100% permanent disablement or temporary total disablement: see
schedule 4 of COIDA). A domestic worker would therefore have had to earn more
than R1 520 per month to receive more from COIDA than the current disability grant
of R1 140 per month.
98 SAA, sec 10.
99 See M Olivier ‘Old age and retirement provision’ in Olivier et al (n 30 above) 275 for a
number of studies which came to the conclusion that the older person’s grant reduces
the poverty gap for older persons by 94% and that the grant in some instances supports
entire households of up to three generations.
100 See part 2.3.1 of this chapter for an outline of the current retirement funding system
and the problems associated therewith.
132 Chapter 4

find it easier to have access to social security under ‘general, social welfare
systems that provide universal, egalitarian access’ than to social insurance
benefits.101 At the same time, all the above-mentioned social assistance
benefits would be described as ‘affirmative’ measures by Fraser in that they
constitute income transfers to ‘redress maldistribution’.102 Such measures,
it is noted, may carry the disadvantage of provoking ‘a backlash of
misrecognition’103 in that beneficiaries of social assistance tend to be
viewed as ‘inherently deficient and insatiable, as always needing more and
more’.104 It may be argued that, in the absence of social insurance or
equivalent measures designed to deal with the precarious nature of
domestic workers’ employment, the role of social assistance as a poverty
reduction tool should not be underestimated. However, it also underlines
the need for a transformative approach in designing inclusive social
security benefits of a non-affirmative kind.

2.3 Retirement benefits for domestic workers

2.3.1 The current retirement funding system

The South African retirement funding system operates differently from

those in most other countries, as South Africa does not have a national
social insurance-type retirement fund. Instead, older persons who do not
qualify for the older person’s grant105 have to rely on retirement benefits
that are provided by roughly 10 032 private occupational funds.106 Only
employees can become members of these funds,107 though self-employed
persons can save for their retirement through the purchase of private
retirement insurance products.

Certain characteristics of this system make it problematic for low-

income, vulnerable employees such as domestic workers.108 First, there is
currently no statutory obligation for individuals to join and contribute to a
retirement fund, which makes the existing South African position ‘unique
from an international perspective’.109 In addition, no positive duty is

101 ILO (n 16 above) 58.

102 S Liebenberg ‘Needs, rights and transformation: Adjudicating social rights’ (2006) 17
Stellenbosch Law Review 5 10. See part 4.3 of Chapter 2 (above) for a discussion of
Fraser’s work on transformative social justice.
103 N Fraser & A Honneth Redistribution or recognition? A political-philosophical exchange
(2003) 76.
104 Fraser & Honneth (n 103 above) 77; Liebenberg (n 102 above) 9.
105 Discussed at part 2.2 of this chapter (above).
106 Financial Services Board Annual Report 2011 (2011) 70. As the older person’s grant is
means-tested, any income received from occupational funds may limit the amount
payable as the older person’s grant or disqualify the older person from receiving the
grant at all.
107 Occupational retirement funds are regulated in terms of the Pension Funds Act 24 of
1956, as amended.
108 G Mbatha ‘The predicament of an African woman: A critique of current legislation
relating to domestic workers’ (2003) 15 South African Mercantile Law Journal 407 409.
109 Department of Social Development Reform of retirement provisions (September 2007) 57.
 Implementing domestic workers’ social security rights within transformative constitutionalism 133

placed on employers to establish retirement funds for their employees.110

The absence of statutory measures to compel occupational fund members
to preserve their savings means that many workers lack adequate savings
on retirement.111 Such difficulties arise particularly when individuals
change jobs or are dismissed and take up their retirement benefits in cash
in order to fund periods of unemployment. Their retirement benefits are
consequently neither transferred to another fund nor re-invested in a
retirement savings vehicle.

Even though very few domestic workers may have access to

occupational retirement fund membership due to the voluntary nature of
the system, even those who are members are likely to receive relatively
small amounts upon retirement.112

2.3.2 Providing domestic workers with retirement income support

The lack of access by domestic and other informal workers to retirement

savings via occupational retirement funds has led to two proposals by
government departments for potential retirement funding options. One of
these proposed interventions is aimed at providing a unique retirement
funding option for domestic and farm workers only, while the other
envisages a retirement funding system that is as inclusive as possible.

A fund for domestic and farm workers only

The Department of Labour has responded to the absence of retirement

income other than the older person’s grant for domestic and farm workers
in particular by calling for submissions regarding the feasibility of
establishing a provident fund specifically for these categories of
workers.113 The decision to initiate the process seemed to be based on the
perception that domestic and farm workers are ‘like no other’ and that a
fund catering for their particular needs is required.

Although any attempt at increasing retirement income for domestic

workers and other informal workers should be regarded as a positive step,

110 Lezar v Braitex Pension Fund & Another [2001] 8 BPLR 2380 (PFA) 2382 para 14.
111 According to the National Treasury Social security and retirement reform (February 2007)
5, fewer than 10% of people leaving retirement funds preserve their benefits.
112 Retirement funds in South Africa are either ‘defined benefit’ or ‘defined contribution’
funds. In the former case benefits are calculated in terms of a formula usually based on
the number of years worked and final salary, which will translate into low retirement
benefits for low-income workers such as domestic workers. With defined contribution
funds the level of retirement benefits is determined by the accumulated value of both
employer and employee contributions plus investment income credited to an account
on behalf of the member: see Pension Funds Act, sec 1. Again, low levels of
contributions lead to a limited investment return and a relatively low benefit upon
retirement.
113 GN 736 in GG 33480 of 20 August 2010.
134 Chapter 4

questions can be raised about the feasibility of a provident fund as the

preferred type of retirement fund.114 The distinguishing feature of
provident funds as opposed to pension funds is that members of provident
funds may elect to receive the full amount of the retirement benefit as a
lump sum instead of monthly pension payments.115 The retiree then has
the option to reinvest the lump sum to buy a retirement annuity. The
payment of the lump sum is one of the perceived advantages of a provident
fund, as it allows the beneficiary greater flexibility in deciding how to
invest (or spend) it. It may also be perceived as having other advantages for
the less well-to-do older person; for example, by enabling the beneficiary
to purchase a house.

However, the disadvantages of a lump sum benefit may outweigh the

advantages. It has been argued that, particularly in developing countries
where beneficiaries tend to lack sophistication regarding financial markets
and investment opportunities for their lump sum pay-out,116 beneficiaries
might be tempted to spend their benefits on consumer goods and in the
long run become dependent on the state.117 From this standpoint a
pension fund, which will provide income during the lifetime of the
beneficiary, is a more reliable option.118

The voluntary nature of the current occupational retirement funding

system also means that there would be no obligation on employers to
participate in such a fund, equivalent to that found in the UIA system.
Another likely disadvantage of a fund created specifically for domestic and
farm workers would be the administrative costs involved. As the fund
would have to bear its own costs, without any cross-subsidisation as is the
case with national schemes, the administrative expenditure would be
relatively high.119

114 As the intervention by the Department of Labour is currently only at a proposal stage
and may never be implemented, an in-depth study of the respective advantages and
disadvantages of provident funds and the extent to which each type of fund meets the
relevant standards of the ILO will not be entered into here.
115 A Asher & M Olivier ‘Retirement and old age’ in Olivier et al (n 10 above) 234. As
opposed to pension funds that are established for the purpose of providing lifelong
periodical payments for employees on their retirement from employment ? definition
of a ‘pension fund’ in sec 1 of the Income Tax Act 58 of 1962; Smith Committee
Report (1995) 25.
116 See National Treasury Retirement fund reform: A discussion paper (December 2004) 34 n
32.
117 DT George ‘Analysis of South African pension fund conversions: 1980-2006;
developing a model for dealing with environmental change’ unpublished PhD thesis,
University of South Africa, 2006 106 & 122; Olivier (n 21 above) 9; J Midgley Social
security, inequality and the third world (1984) 95 & 179.
118 The National Treasury (n 116 above) 24 expresses the concern that many people who
retire in good health ‘tend to underestimate their longevity’, and that a lump sum
benefit does not suffice to produce a sufficient income during retirement for them.
Pension fund members are assured of a secure flow of income and are, therefore, freed
from post-retirement investment gambles: SN Iyer ‘Pension reform in developing
countries’ (1993) 132 International Labour Review 127 191.
119 See L Willmore Public versus private provision of pensions Discussion paper of the UN
Department of Economic and Social Affairs, Paper 1 (1999) 6.
 Implementing domestic workers’ social security rights within transformative constitutionalism 135

The concept of a public retirement fund limited to a specific sector or

sectors also raises questions of a more fundamental nature. Authors such
as Olivier have doubted the wisdom of focusing on the reform of a part of
the social security system which limits coverage to one section of the
labour force and excludes informal workers, as ‘it directs the attention of
government and other stakeholders away from a huge segment of the
population with no or little social security coverage’.120

For all these reasons it may therefore be preferable to incorporate

domestic workers into the proposed national retirement fund based on
solidarity and cross-subsidisation for lower income and vulnerable
employees, which is discussed below.

Establishing a national retirement fund

The National Treasury and the Department of Social Development have

put forward proposals to overhaul the South African retirement funding
system as part of creating a new social security system, based on the World
Bank’s multi-pillar model that has been adopted in a number of
countries.121 Various discussion documents have been published to
facilitate the process.122 It is envisaged that universal social assistance for
older persons will constitute the first pillar of the reformed retirement
income security system.123 The second pillar would consist of a mandatory
contributory retirement funding scheme for all employees, with possible
contributions by self-employed individuals and workers in informal
employment.124 This pillar would be based on principles such as equity,
pooling of risks, mandatory participation, administrative efficiency and
solidarity.125 The remaining pillar(s) are envisaged as supplementary
retirement saving schemes to boost retirement income received from the
retirement funding scheme126 as well as systems to assist older persons
with medical care and accommodation.

120 Olivier (n 21 above) 18. The extent of the exclusion of informal workers from social
insurance schemes is explained in the introduction to this chapter.
121 For more on the World Bank ‘multi-pillar’ model, see R Holzmann & R Hinz Old-age
income support in the 21st century (2005).
122 The discussion documents include the National Treasury papers (n 111 and 116
above); the Department of Social Development discussion document (n 109 above);
and the Taylor Committee Report (n 11 above). However, no further documents have
been made available for public comments since 2008. At time of writing, the latest
consolidated discussion paper on social security and retirement reform promised in the
National Treasury’s 2011 Medium Term Budget Policy Statement has not yet been made
available for public scrutiny.
123 S Jehoma ‘The evolving Retirement landscape – Shaping inclusive growth’
Presentation at the Institute of Retirement Funds Annual Conference, 28 September
2011.
124 Jehoma (n 123 above) states that a contribution subsidy to offset the cost of labour of
low income employees is planned.
125 National Treasury Budget review 2007 (January 2007) 110.
126 See Department of Social Development (n 109 above) 93.
136 Chapter 4

It is submitted that these proposals should be understood in the context

of the decent work agenda as reflected in the 2012 ILO Recommendation
concerning national floors of social protection, including universality of
protection based on social solidarity.127 Member states are encouraged to
implement social protection floors and extension of social security on the
basis of non-discrimination, gender equality and responsiveness to special
needs;128 solidarity in financing;129 transparent, accountable and sound
financial management and administration;130 and financial, fiscal and
economic sustainability with due regard to social justice and equity.131

It is clear that one of the primary goals of the proposed retirement

funding system is to be as inclusive as possible. A fund with mandatory
membership for all employees would cater for all domestic and vulnerable
workers as well. Mandatory membership would help to circumvent
reluctance on the part of employers as well as workers to participate in the
scheme and could be supplemented by incentives; for example, tax
incentives for employers who register their domestic workers with the
national social security system and pay contribution for those workers, as
is the case in Brazil.132

The inclusion of domestic workers in such a fund would have

advantages over and above financial benefits. It would, for example, help
to clarify the socio-economic role of domestic workers if they belonged to
a national scheme like all other workers instead of depending on
affirmative measures such as state grants. As members of a national fund
they would furthermore become part of the participatory debate and,
amongst other things, be in a position to influence how the fund’s money
is invested. In these respects the establishment of a national retirement
fund would amount to a transformative measure.

3 Extending social protection to workers outside

formal employment

The fundamental challenges of developing a regulatory framework

encompassing non-standard and informal forms of work were considered
in Chapters 2 and 3. The essence of the problem is well captured in the
ILO’s 2010 report on ‘Decent Work for Domestic Workers’:133

127 Art 3(a).

128 Art 3(d).
129 Art 3(h).
130 Art 3(j).
131 Art 3(k).
132 M Tomei 'Decent work for domestic workers: Reflections on recent approaches to
tackle informality' (2011) 23 Canadian Journal of Women & the Law 185 207; and see part
5.2 of Chapter 5 below. The fact that this scheme has had limited success in Brazil,
leading to an increase of only 1% in the registration of domestic workers by employers
compared with a government target of 20%, indicates that further study is needed
towards developing a successful tax incentive model.
 Implementing domestic workers’ social security rights within transformative constitutionalism 137

[P]aid domestic work remains virtually invisible as a form of employment in

many countries. Bound up as it is with notions of the family and of non-
productive work, the employment relationship is thought not to ‘fit’ neatly
into the general framework of existing labour laws, despite their origin in the
‘master-servant’ relationship. As a result, in most legislative enactments the
specific nature of the domestic employment relationship is not addressed.
And yet, at the level of local, informal norms and common assumptions
about the work and the workers concerned, that same specificity tends to be
relied upon to justify denying domestic workers their status as ‘real workers’
entitled to full legislative recognition and protection.

The historic connection between formal employment and social security

systems, alluded to above, means that corresponding – but by no means
identical – challenges are faced in giving effect to the right of access to
social security of those outside formal employment. The following extract
from the World Social Security Report 2010/11 illustrates the dilemma faced
by the state in countries with a high prevalence of informal work:134

As international experience has shown, specific types of labour market

structures associated with low shares of wage employment and high
informality, together with the prevailing low and irregular household income
levels which result in a high incidence of income poverty, make populations of
countries particularly vulnerable to various life-cycle, social and economic
risks and contingencies. While the need in such vulnerable societies for social
security coverage is even higher than elsewhere, high effective coverage by
statutory social insurance schemes is usually extremely difficult to achieve
there, precisely because of the prevalence of non-wage employment status and
of low and irregular incomes.

The ILO’s Decent Work Agenda lists ‘working through dedicated

programmes and activities to protect such vulnerable groups as migrant
workers and their families; and workers in the informal economy’, as one
of its main objectives in extending the coverage of social protection.135
Also in the 2012 Recommendation concerning national floors of social
protection, the ILO stresses the importance of the establishment of
sustainable social security systems in the transition from largely informal
to formal employment.136

133 ILO (n 16 above) 12.

134 ILO (n 2 above) 30.
135 The fact that in many instances social risks occur while domestic workers are living
apart from their families who, according to the current legal framework, have the
primary responsibility to provide them with care during illness or old age, complicates
the matter significantly.
136 ILO (n 2 above) Preamble. The assumption that informal forms of work will gradually
be superseded or absorbed by the existing formal labour market is questionable: see
part 6 of Chapter 1 (above).
138 Chapter 4

Southern Africa is a region where these challenges loom large.137 In

terms of Article 10(1) of the Charter of Fundamental Social Rights in the
Southern African Development Community (SADC), member states are
required to:

[C]reate an enabling environment such that every worker in the Region shall
have a right to adequate social protection and shall, regardless of status and
the type of employment, enjoy adequate social security benefits.

Article 6 of the Code on Social Security in the SADC requires member

states to extend social insurance coverage to the entire working population
and to provide and regulate social insurance mechanisms for workers
outside the reach of formal institutions. Both regional instruments,
therefore, underscore the importance of national and regional social
protection for all workers, whether they work in currently regulated or
unregulated parts of the economy.

Given that many such workers lack the means to pay regular
contributions to retirement funding schemes, including administration
costs,138 the National Treasury’s Retirement Fund Reform discussion paper
rightly identified improved access to an affordable retirement saving
vehicle for those with irregular and informal earnings as a key objective.139
Unless and until a comprehensive public retirement funding scheme is
established, however, these workers will be left to their own devices when
it comes to providing income security during retirement and may in
practice be forced to prioritise day-to-day survival over saving for future
risks.140 Informal social security measures are thus embraced as the only
form of social protection by many who are marginalised by the existing
institutions. These include various forms of family and community
support as well as more structured forms of mutual support such as burial
societies and stokvels.141 To the extent that the need for social protection
may give rise to organisation by domestic workers for this purpose, the
process is discussed more fully in Chapter 7 below. For present purposes
the key issue is the need for policy development to bridge the gap between
existing forms of social protection and the needs which marginalised
workers are seeking to address through their own efforts.

137 In most countries the percentage of workers working informally ranged from 30 to
68% in 2000 and appeared to be on the increase: C Fenwick et al ‘Labour law: A
Southern African perspective’ International Institute for Labour Studies, Geneva
(2007) 19.
138 According to the National Treasury (n 112 above) 21 n 17, ‘[t]he administration cost of
operating an individual account for a member of an occupational retirement fund is
equivalent to so large a percentage of likely savings for such a person that participation
in an occupational retirement fund or a retirement annuity fund is not feasible.’
139 National Treasury (n 111 above) 12. See also National Treasury (n 116 above) 19.
140 Olivier (n 21 above) 13.
141 See A Dekker & M Olivier ‘Informal social security’ in M Olivier et al (n 10 above)
559-593 for a discussion of the various informal social security structures in South
Africa.
 Implementing domestic workers’ social security rights within transformative constitutionalism 139

Cost-effective mechanisms for progressively including informal

workers in the earnings-related pillars of the reformed social insurance
scheme – in other words, formalising access to social protection by
informal workers – are likely to remain a focus of policy development.142
A number of possible options have been noted.143 One option is the
progressive inclusion of informal workers in a mandatory social insurance
scheme that is adapted to make provision for such workers. An obvious
difficulty would be the collection of their contributions, meaning that only
those whose contributions can effectively be collected could be
included.144 In the case of domestic workers a number of countries have
sought to address this problem by introducing public schemes that make it
‘easier and less costly for households to resort to [social security]
services’,145 for example by providing fiscal incentives to ensure
compliance with existing laws protecting domestic workers and requiring
employers to pay contributions.146 In the case of Brazil, for instance,
employers of domestic workers qualify for tax deductions as a measure to
encourage them to pay their domestic workers at least the minimum wage,
to register their domestic workers with the National Social Security
Institute and to make regular social security contribution payments.147
This is in line with the requirement in the Brazilian constitution that
measures are to be taken to integrate domestic workers into the social
security system.148

Another option is the creation of a low-cost public savings scheme for

workers marginalised from the formal retirement funding structures,
thereby emphasising that they are workers ‘like no other’.149 An example
of legislation addressing the social security rights of informally employed

142 According to Olivier (n 21 above) 19, ‘the pursuit of social justice ideals demands that
coverage of existing social insurance schemes be extended to informal sector workers’.
See also art 14(1) of ILO Convention 189.
143 C Gillion ‘The development and reform of social security pensions: The approach of
the International Labour Office’ Executive summary (2000) 16.
144 The Taylor Committee Report (n 11 above) para 3.6.2 suggested that ‘if the
mechanisms for collection are not likely to be efficient, regulations for the introduction
of compulsory cover will not be effective, and should not be introduced’. In contrast,
and more in keeping with a context of transformative constitutionalism, International
Labour Organisation Domestic Workers Recommendation 201 of 2011 recommends
that measures to ‘facilitate the payment of social security contributions, including in
respect of domestic workers working for multiple employers, for instance through a
system of simplified payment’ be considered (art 20(1)).
145 Tomei (n 132 above) 189.Tomei also examines Titre-Service in Belgium and the
Cheque Emploi Service Universel (CESU) in France as examples of fiscal incentives to
employers of domestic workers.
146 Tomei (n 132 above) 191, read with 205-207.
147 In terms of Law no 11.324 of 2006 (Nova Lei do Empregado Doméstico). See Ministry of
Social Welfare Overview of Brazilian social welfare (2009) 26; Tomei (n 132 above) 206.
As already noted, the measure has had limited success and may need to be
reconceptualised: n 132 above.
148 Art 7 of the Federal Constitution of Brazil, 1988, provides for the integration of
domestic workers into the social security system, in addition to express provision for
the extension of paid maternity leave and retirement pensions to domestic workers.
149 As proposed by the Taylor Committee Report (n 11 above) para 9.2.6.3; National
Treasury (n 111 above) 22 and (n 116 above) 14; Olivier (n 21 above) 20.
140 Chapter 4

workers, such as domestic workers, can be found in the Unorganised

Workers’ Social Security Act in India150 that provides for the
establishment of national (specifically, federal) schemes relating to life and
disability cover, health and maternity benefits and old age protection,151
and state schemes relating to provident fund, employment injury benefits,
housing, skills development, funeral assistance and old age homes for
informal workers.152 This statutory system coexists with informal schemes
such as those offered by the Self-employed Women’s Association.153
Significant though this step is, however, schemes established in terms of
the Act may be described as affirmative measures in that state-funded
benefits are extended to the indigent from defined categories of working
people.154 The challenge of designing transformative strategies, as
discussed in Chapter 2, thus remains to be addressed.

In the case of South Africa, it has furthermore been argued that a

separate scheme for domestic workers may not be cost-effective and may
add to their marginalisation unless it is created as a voluntary option in
addition to mandatory membership of a national social insurance
scheme.155

A third option is the creation of a comprehensive social security system

for all workers, including self-employed persons, with special measures
such as cross-subsidisation to enable effective participation by and
adequate benefits for informal workers. Olivier emphasises the importance
of ‘a proper model aimed at developing an integrated approach towards
formal and informal social security coverage’.156 The advantages of such
an approach have already been noted.157 The aim, it is suggested, should
be a model that extends coverage of the formal social insurance schemes to
the extent that is realistically possible while, linked to that, developing
transformative strategies for including those who are currently excluded.
Such strategies may well build on the role played by existing informal
social security schemes and would need to articulate with formal social
insurance schemes in order to create a truly comprehensive system rather
than a disjointed series of ‘first-class’ and ‘second-class’ systems. The

150 Act 33 of 2008 http://labour.nic.in/upload/uploadfiles/files/ActsandRules/

SocitySecurity/TheUnorganisedWoekersSocialSecurityAct2008.pdf (accessed 6 April
2013).
151 Sec 3(1).
152 Sec 3(4).
153 SEWA offers a range of services for working women including health care, child care,
capacity-building and housing and infrastructure: see SEWA www.sewa.org (accessed
20 December 2012).
154 In terms of the Indira Gandhi National Old Age Pension Scheme, eg, Rs.400 (R66) per
month is currently payable to persons aged 65 years or older and belonging to a
household below the poverty line: Press Information Bureau, Government of India
‘Indira Gandhi National Old Age Pension Scheme’ 21 April 2008. The amount was
increased from Rs.200 to Rs.400 in the 2012-2013 federal budget.
155 See Olivier (n 21 above) 21.
156 Olivier (n 21 above) 19.
157 Olivier (n 21 above) 17.
 Implementing domestic workers’ social security rights within transformative constitutionalism 141

articulation between federal, state and informal institutions for extending

social protection in India deserves study in this context as a possible
framework of reference. Whichever model is ultimately chosen, however,
should be based on ‘national consultations through effective social
dialogue and social participation’158 and domestic workers’ organisations
should ensure that every possible opportunity to participate is utilised.159

4 Addressing domestic workers’ role as caregivers

The focus of the chapter so far has mainly been on social security in the
form of various types of income support for domestic workers. However,
in addition to the financial support provided for those unable to work,
older persons, children and persons with severe disabilities have additional
needs for support and care. In the case of older persons, for example,
decreased ability to see to their daily needs and increasing levels of medical
care required by many mean that their physical circumstances need as
much attention as their financial needs. The protection of older persons’
right of access to care and support is thus part of their right of access to
social security160 which, in turn, is linked to their right of access to housing
and, most importantly, their right to dignity. The same applies to persons
with severe disabilities. That children are entitled to care and support is a
given.161 The following section of this chapter addresses the role of
domestic workers in providing much of the care to older and disabled
family members of their employers and their employers’ children, as well
as the relative absence of equivalent access to support and care for
domestic workers themselves when they need it.

The current South African policy framework on caregiving reflects a

public-private divide: the care of children, persons with disabilities and
older persons is primarily seen as the duty of the family,162 with the state
effectively being required to step in only when families cannot provide the

158 ILO (n 2 above) art 13(1).

159 See part 3 of Chapter 7 (below) for a discussion of the empowerment and organisation
of domestic workers.
160 The right of access to social security is discussed in part 5 below.
161 Sec 28(1) of the Constitution provides that every child has the right ‘…
(b) to family care or parental care, or to appropriate alternative care when removed
from the family environment;
(c) to basic nutrition, shelter, basic health care services and social services’.
162 At common law a reciprocal duty to support each other exists between parents and
children. Therefore children also have a duty to support their parents. The parent’s
need and the child’s ability to support are criteria that are taken into consideration:
L Van Zyl Handbook of the South African law of maintenance 2 ed (2005) 12 (Footnote in
the original quotation).
142 Chapter 4

necessary care.163 The position reflected in the White Paper164 has been
summarised as follows:165 [E]very individual has the personal
responsibility to provide for his or her own retirement and old age. Failing
this, the family is viewed as the core of the support systems of the elderly.
The state’s only remaining role is therefore to provide for the needs of the
disadvantaged, destitute and frail older persons who require 24-hour care
and who do not have the financial resources to meet their own needs.166
Older persons who do not fall within these categories will be required to
depend on their families for assistance and care.

In many instances employers’ families use domestic workers to

provide such care.167 The Preamble of the Domestic Workers Convention
recognises the role of domestic workers in creating opportunities for
workers with family responsibilities to enter the labour market, as well as
providing additional scope for care of children, older persons and persons
with disabilities. This role of domestic workers in the field of social security
is increasing rather than diminishing. One of the main drivers of an
increased need for domestic workers to care for older family members is
the ageing of the world population.168 At the same time, tougher economic
times such as the post-2008 period require more women to enter the labour
force, expanding the de facto need for child care which is often met by
employing domestic workers. Thus, economically better-off families
delegate their care duties to domestic workers.169 In addition, the global

163 This, at least, is the de facto situation. According to the White Paper (n 30 above) 19,
the state cannot accept sole responsibility for meeting the basic socio-economic needs
of all persons in need of support and civil society will have to meet some of those
needs. Families are regarded as the basic unit of society and are consequently required
to carry some of the responsibility of providing social support (at 20).
164 White paper (n 30 above). The Older Persons Act 13 of 2006 provides for the
regulation of residential facilities and the broadening of the scope of financial
assistance to community organisations to include community-based support
programmes and home-based care. One of the objects of the Act is to ‘shift the
emphasis from institutional care to community-based care in order to ensure that an
older person remains in his or her home within the community for as long as possible’:
sec 2(c). The Older Persons Act therefore provides the legislative framework for the
care and protection of older persons. While it regulates how care should be provided
for older persons, it does not determine when older persons are entitled to rely on the
state for care (except for reg 22(1), Regulations regarding older persons GN R 260 in
GG 33075 of 1 April 2010, that provides for higher financial awards to service
providers who provide services to ‘older persons who have been disadvantaged by
unfair discrimination’). Hence, legislation giving effect to the shared responsibility of
the state and older persons’ families and communities for older persons’ care remains
to be enacted to determine the circumstance under which older persons are entitled to
state support.
165 K Malherbe ‘Older Persons Act: Out with the old and in with the older?’ (2007) 11
Law, Democracy & Development 53 54.
166 White Paper (n 30 above) 71.
167 S Ally ‘Caring about care workers: Organising in the female shadow of globalization’
(2005) 38 Labour, Capital and Society 185.
168 Tomei (n 132 above) 187 highlights ‘the ageing of societies, alongside the shift from
nursing homes to home care in the name of greater efficiency and better-tailored
services’ as some of the main factors contributing to the worldwide increase in demand
for paid care services.
169 Tomei (n 132 above) 187.
 Implementing domestic workers’ social security rights within transformative constitutionalism 143

financial crisis of 2007-2008 and subsequent austerity measures in many

countries have led to cutbacks in the provision of care, with various public
roles being privatised.170 This may further increase the need for domestic
workers to provide care.171

An argument can therefore be made that domestic workers provide

care where their employers’ families cannot. The public-private divide thus
becomes less clear. According to the constitutional and legal framework in
South Africa, the state must provide care where the family cannot, but in
many cases it is domestic workers in the families’ employment who do so.
Therefore, domestic workers in many cases may be used to fulfil a task that
is constitutionally incumbent on the state.

According to Williams,172 similar issues have been raised in the

context of migrant domestic workers providing care work in Europe. She
frames her discussion of care policies in the language of Fraser by referring
to claims by domestic workers for ‘recognition’ and for ‘redistribution’.173
Claims for recognition by organisations representing domestic workers
have included ‘making visible this hidden workforce’174 and extending
social protection to them, ultimately resulting in the ILO Domestic
Workers Convention. Equally important in the context of domestic
workers as carers, the focus of redistribution claims has become ‘shifting
responsibilities to the state for the regularisation of care and domestic
work’.175 Thus, where domestic workers are fulfilling a task that otherwise
would have been the responsibility of the state, the state must provide
regulatory structures that support this function and also respond to the
social protection needs of domestic workers themselves.

Gomez and Bertolin illustrate this point in the context of Brazil where
the lack of publicly-funded day-care for children leaves women who want
to enter the labour market with little option but to delegate their de facto
domestic and caregiving role to domestic workers. The latter, however,
with less economic resources, do not even have this option when they
leave home to work for their employer and have to leave their own de facto
domestic and caregiving role to other family members – often a girl ‘who
in the future will also become a domestic worker’.176

170 See the discussion in part 5 of Chapter 1 (above).

171 In Europe a variety of incentives, such as cash allowances, tax credits or vouchers for
making use of domestic workers as carers, have accompanied the policy shift from
state provision of care to privatised care. F Williams ‘Claiming and framing in the
making of care policies: The recognition and redistribution of care’ UNRISD Papers
(2010) 9.
172 Williams (n 171 above) 10.
173 See part 4.4 of Chapter 2 (above) for an outline of Fraser’s framework of analysis.
174 Williams (n 171 above) 10.
175 As above.
176 AV Moreira Gomes & PT Martins Bertolin ‘Regulatory Challenges of domestic work:
The case of Brazil’ McGill Labour Law and Development Research Laboratory
Working Paper Series (2010) 5.
144 Chapter 4

Much the same applies in South Africa, except that in many instances
domestic workers’ own domestic and caregiving tasks are delegated to
elderly parents as well as older children. It therefore can be argued that
domestic workers qualify for social security support for precisely this
reason. In terms of the White Paper social security includes ‘a wide variety
of public and private measures that provide cash or in-kind benefits or both
… in the event of an individual’s earning power … being exercised only at
unacceptable social cost’.177 Where domestic workers’ caregiving tasks at
home are delegated to children or older persons who themselves should be
receiving care due to a lack of state-subsidised childcare, it is submitted, it
should be considered an ‘unacceptable social cost’. If one factors in that the
domestic worker is performing a role that is constitutionally incumbent on
the state, it becomes clear that the state should not be able to rely on the
public-private divide under these circumstances and is, at the very least,
obliged to provide the domestic worker with subsidised child care.

The problem is exacerbated when domestic workers become too old to

work and are in need of care themselves.178 Studies have shown that in
developing countries, particularly in Africa, informal (family and
community) systems ‘provide the bulk of social support for older persons’
and that the public social security systems therefore play a less important
role.179 However, the breakdown of traditional family support for older
persons in rural areas due to the migration of the younger generation to the
urban areas is a global phenomenon also found in South Africa.180 The
trend is accentuated by increasing numbers of women entering the paid
labour force – many as domestic workers – and the decline in the number
of members of the younger generation in the rural areas due to AIDS-
related deaths.181 For all these reasons the assumption that families will in
the main care for older family members no longer holds true, leaving older
persons increasingly reliant on services provided by the community in the
absence of state support.182 As a result, a retired domestic worker is as
likely to be the caregiver for her family members as being the recipient of

177 White Paper (n 30 above) 3.

178 For the rest of this section of the chapter it is assumed that the domestic worker’s
family does not have the financial resources to pay a domestic worker to care for the
retired domestic worker.
179 A Ståhlberg et al Retirement income security for men and women International Social
Security Association, Technical Report 23: Geneva (2008) 10. See also A Dekker &
M Olivier ‘Informal forms of social security and informal sector social security’ in
Olivier et al (n 30 above) 83-99; AH Dekker ‘Mind the gap: suggestions for bridging the
divide between formal and informal social security’ (2008) 1 Law Democracy &
Development 117-131 for more on informal social security measures.
180 Asher & Olivier (n 115 above) 270. Ståhlberg et al (n 179 above) 2, note that
‘[u]rbanization and changing family patterns put a heavy strain on the extended family
or village support and make these informal security systems less reliable’.
181 See K Tout ‘Grandparents as parents in developing countries’ (1994) 21 Ageing
International 19 for the effect of men and women of working age leaving the rural areas
and AIDS-related deaths on the extended family and the additional caregiving burden
placed on older persons. See also Williams (n 171 above) 21.
182 The Presidency of South Africa National Report on the Status of Older Persons 1994-2002
Report to the Second World Assembly on Ageing – Madrid (2002) 42.
 Implementing domestic workers’ social security rights within transformative constitutionalism 145

care. It is submitted that such workers have a valid claim that care policies
be adapted to make provision for their situation based on the ‘unacceptable
social cost’ of the care they are providing as well as intergenerational
solidarity.183

5 The right of access to social security as

transformative strategy

5.1 The dynamics of rights based social security

The Preamble to the South African Constitution states that it aims to

establish a society based on democratic values and to improve the quality
of life of all citizens and free the potential of each person. The
constitutional commitment to addressing this task has been interpreted as
follows:

We live in a society in which there are great disparities in wealth. Millions of

people are living in deplorable conditions and in great poverty. There is a high
level of unemployment, inadequate social security, and many do not have
access to clean water or to adequate health services. These conditions already
existed when the Constitution was adopted and a commitment to address
them, and to transform our society into one in which there will be human
dignity, freedom and equality, lies at the heart of our new constitutional order.
For as long as these conditions continue to exist that aspiration will have a
hollow ring.184

As noted already, section 27 of the Constitution provides that everyone has

the right of access to social security, including appropriate social assistance
if they are unable to support themselves and their dependants. The state is
required to take reasonable legislative and other measures within its
available resources to achieve the progressive realisation of these rights.185
The creation of a comprehensive and integrated social security system is
thus an integral part of the realisation of the constitutional vision.186 In
concluding this chapter the focus will be on the transformative
implications of constructing such a system. The point of departure is that

183 Intergenerational solidarity can be described as ‘the solidarity between the active
working-age population, as one generation, from which benefits flow to older persons
as the other’. ED Malherbe ‘Intergenerational solidarity and the provision of support
and care to older persons’ unpublished LLD thesis, University of the Western Cape,
2010 4.
184 Soobramoney v Minister of Health, KwaZulu-Natal 1997 (12) BCLR 1696 (CC) para 8. See
also Liebenberg (n 102 above) 5.
185 Sec 27(2). The social security measures that may prove most beneficial to, but not
necessarily currently available to, domestic workers – that is, compensation for
occupational injuries and diseases, unemployment, illness and maternity benefits,
retirement benefits and state grants – all fall within the scope of sec 27.
186 E de Wet ‘Can the social state principle in Germany guide state action in South Africa
in the field of social and economic rights?’ (1995) 11 South African Journal on Human
Rights 30 36; White Paper (n 30 above) para 45.
146 Chapter 4

social protection must not only be accessible to marginalised workers such

as domestic workers but must be shaped according to their actual needs,
based on the principle of indivisible human dignity finding expression
through differentiated social institutions aimed at promoting substantive
equality amongst diverse groups.187 These values, which are of special
importance to the right of access to social security and recognition of the
state as a social state,188 underlie all measures to protect and improve the
lives of domestic workers.

Section 7(2) of the Constitution actualises the implementation of the

right of access to social security and social assistance by placing an
obligation on the state to respect, protect, promote and fulfil the rights in
the Bill of Rights. The right of access to social security, however, is
qualified by section 27(2) which provides that:

• the state is required to take reasonable legislative and other measures

• within its available resources
• to achieve the progressive realisation of this right.189

There are qualifications attached to the right of access to social assistance

as well: only ‘appropriate’ social assistance is guaranteed, which means
inter alia that an applicant has to meet the requirements imposed at the
state’s discretion.

In addition, section 7(3) refers to external limitations by stating that the

rights in the Bill of Rights, including the right to social security, may be
limited in accordance with the criteria set out in section 36.190 In terms of
section 36(1) such a limitation may only be effected by a ‘law of general
application’ (that is, not by administrative or private action) and all
relevant factors referred to in the subsection are taken into consideration.
In effect, this means that the right to social security may only be limited
when it is practically unavoidable or if the limitation serves a sufficiently

187 When interpreting any of the fundamental rights in the Constitution and, therefore,
the right of access to social security, the courts must promote the values that underlie
an open and democratic society based on human dignity, equality and freedom: sec
39(1)(a) of the Constitution; D Moseneke ‘Transformative adjudication’ (2002) 18
South African Journal on Human Rights 309 314. See also H Botha ‘Metaphoric
reasoning and transformative constitutionalism (part 2)’ (2003) 1 Tydskrif vir die Suid-
Afrikaanse Reg 20 21, and see the discussion in part 4 of Chapter 2 (above).
188 Olivier et al ‘Constitutional framework’ in Olivier et al (eds) (n 30 above).
189 My emphasis.
190 Sec 36(1), the general limitations clause, reads as follows:
‘The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into account
all relevant factors, including –
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.’
 Implementing domestic workers’ social security rights within transformative constitutionalism 147

important purpose. Having regard to the nature and extent of the

limitation and the relations between the limitation and its purpose,
furthermore, the limitation should not restrict the social to security right
more than is necessary.191

Against this background section 27(2) has been interpreted as not

merely qualifying the right of access to social security, but also as requiring
the state to devise a ‘comprehensive and workable plan’ to meet its
obligations.192 At the same time a court should set aside any limitation on
the enjoyment of a social security right contained in existing legislation
which is unjustifiable in terms of section 36(1).193 It has already been
argued194 that the express exclusion of domestic workers from the right to
statutory compensation for occupational injuries and diseases not only
fails this test but cannot be seen as a ‘reasonable’ measure for purposes of
section 27(2). The ‘reasonableness’ and constitutional validity of the de
facto exclusion of domestic workers from other forms of social insurance
will be considered next before interrogating, in conclusion, the meaning of
a ‘comprehensive and workable plan’ whereby the state can give effect to
its duty in terms of section 27(1) of the Constitution towards domestic and
other marginalised workers.

5.2 The reasonableness of current social insurance schemes in

the context of domestic work

The Constitutional Court195 has given a careful interpretation of the

concept of ‘reasonable’ legislative and other measures required of the state
to achieve the realisation of the right of access to social security in terms of
section 27(2) of the Constitution. In considering the ‘reasonableness’ of
such measures, it was held, that a court196

will not enquire whether other more desirable or favourable measures could
have been adopted or whether public money could have been better spent.
The question would be whether the measures that have been adopted are
reasonable. It is necessary to recognise that a wide range of possible measures
could be adopted by the state to meet its obligations. Many of these would
meet the requirement of reasonableness. Once it is shown that the measures
do this, the requirement is met.

191 See, eg, South African Transport and Allied Workers Union (SATAWU) & Others v Moloto
NO & Another 2012 (11) BCLR 1177 (CC) para 20.
192 Grootboom (n 64 above) para 38.
193 Olivier et al ‘Constitutional framework’ in Olivier et al (eds) (n 30 above) 142.
194 See part 2.1 of this chapter (above).
195 Grootboom (n 64 above).
196 Para 41. A similar interpretation of the reasonableness of measures taken by the state
was applied by Mokgoro J in Khosa and others v Min of Social Development and others;
Mahlaule and another v Min of Social Development & Others 2004 (6) BCLR 569 (CC) para
48.
148 Chapter 4

However, there are limits as to what can be considered ‘reasonable’. ‘A

programme that excludes a significant segment of society’, the court went
on to hold, ‘cannot be said to be reasonable’.197 Nor would it be sufficient
for the state to provide statistics to back up claims of the steps taken to
advance the right in question. The test is whether the measures are
reasonable and effective in their conception and implementation198 and
whether they have responded to the needs of particularly vulnerable and
marginalised people.199 Other factors taken into consideration to
determine the ‘reasonableness’ of such measures include the institutional
capacity to implement a social security programme and the flexibility of
the programme.

When courts are called upon to determine whether domestic workers’

right of access to social security has been violated, their decisions must
reflect the context of the socio-economic conditions of domestic workers
‘in the light of social patterns, power relations and other systematic forms
of deprivation, which may be relevant’.200 Domestic workers have been
internationally recognised as being especially at risk, given that their work
is:

mainly carried out by women and girls, many of whom are migrants or
members of disadvantaged communities and who are particularly vulnerable
to discrimination in respect of conditions of employment and of work, and to
other abuses of human rights.201

Hence, measures taken by the state to achieve the realisation of domestic

workers’ social security rights have to take their vulnerable position into
consideration. Measured against this and other criteria noted above, it is
submitted that forms of social insurance confined for all intents and
purposes to workers in formal employment relationships and thereby
excluding ‘a significant segment of society’, cannot be deemed ‘reasonable’
in the absence of additional measures extending equivalent protection to
workers not covered by such insurance.

5.3 Progressive realisation of domestic workers’ social security

rights

The inclusion of the term ‘progressive realisation’ in section 27(2) of the

Constitution makes it clear that the right of access to social security was
not conceived of as a right that could be realised immediately and in its

197 Para 43.

198 In Grootboom (n 64 above) para 42, it was stated that ‘an otherwise reasonable
programme that is not implemented reasonably will not constitute compliance with
the state’s obligations’.
199 Para 44.
200 Moseneke (n 187 above) 318-319.
201 ILO Domestic Workers Convention 189 of 2011, Preamble.
 Implementing domestic workers’ social security rights within transformative constitutionalism 149

entirety. The ILO Domestic Workers Convention also allows member

states to progressively ensure that domestic workers have access to social
security and maternity benefits that are not less favourable than other
workers.202

The term ‘progressive realisation’ also appears in the International

Covenant on Economic Social and Cultural Rights (ICESCR).203 The UN
Committee on Economic and Social Rights has explained the term
‘progressive realisation’ as meaning that the state has the obligation to
move as effectively and expeditiously as possible to securing its ultimate
goal.204 In Grootboom205 this approach was found to be helpful in
determining the meaning of ‘progressive realisation’ in the South African
Constitution, and it was held that ‘there is no reason not to accept that it
bears the same meaning in the constitution as in the document from which
is was so clearly derived’.

Barberton,206 on the other hand, finds the interpretation of progressive

realisation in the General Comment unhelpful as its practical implications
are unclear. He criticises an interpretation of ‘progressive realisation’
which focuses on the input side of the equation by merely requiring
government to progressively increase the amount of resources it allocates
to socio-economic programmes.207 He finds such an approach financially
and economically unsustainable as the money for increased spending on
socio-economic programmes will have to be found by either cutting
expenditure in other areas or increasing the level of taxation. Continuously
pumping additional resources into inefficient government delivery systems
is also criticised, as Barberton feels that service levels could also be
improved in ways that would not necessarily require additional resources.

According to Barberton the preferred approach to interpreting

‘progressive realisation’ is to focus on programme outputs and policy
outcomes. The outcome approach places the focus on delivery efficiency
and programme effectiveness.

Adapting Barberton’s outcome-based focus to the realisation of

domestic workers’ right of access to social security, three questions can be

202 Art 14.

203 Adopted and opened for signature, ratification and accession by General Assembly
resolution 2200A (XXI) of 16 December 1966.
204 General Comment No 3, UN Doc E/1991/23, para 9.
205 n 64 above, para 45.
206 C Barberton ‘Paper tigers? Resources for socio-economic rights’ (1999) 2 ESR Review
2.
207 As Barberton observes, ‘an output/outcome interpretation of “progressive realisation”
places a positive obligation on government to measure and report on its performance
in every area of service delivery’: (n 206 above) 4. Ten years on it is evident that,
despite a number of improvements, service delivery remains a problem area that
continues to be viewed predominantly from an ‘input’ perspective: cf African Peer
Review Mechanism Second report on the implementation of South Africa's APRM
programme of action (2010) 34-36.
150 Chapter 4

asked in order to ‘evaluate the results’ of government social security

programmes:

(a) How many domestic workers have benefited as a result of the social
insurance programmes or grants paid by government?
(b) What is the cost of each additional domestic worker receiving social
security?
(c) How could the scope and level of social security benefits for domestic
workers be improved, given the existing socio-economic circumstances?208

It is submitted that such an approach will be more useful in establishing

whether the state has achieved progressive realisation of social security
rights rather than merely determining whether it has increased its
expenditure in the relevant fields. A substantial quantitative study would
be required to answer the above questions. However, based on the
available evidence it seems safe to say that such a study is likely to quantify
certain deficits in the enjoyment of the right to social security by domestic
workers which the state could reasonably begin to address within the limits
of its available resources.209 The essential meaning of ‘progressive
realisation’ is that ‘accessibility should be progressively facilitated: legal,
administrative, operational and financial hurdles should be examined and,
where possible, lowered over time’.210 In the final part of the chapter we
shall consider a framework for achieving this objective.

5.4 Transforming domestic workers’ access to social security

The 2012 ILO Recommendation concerning national floors of social

protection urges Member states to implement national floors ‘within
strategies for the extension of social security that progressively ensure
higher levels of social security to as many people as possible’.211 One of the
main principles that member states should apply in doing so is ‘social
inclusion, including of persons in the informal economy’.212 The
Recommendation clearly states the ILO stance on progressive realisation:
Member states are required to set targets and time frames for the
progressive realisation of social security rights213 and to ‘seek to provide
higher levels of protection to as many people as possible’.214

208 See Barberton (n 206 above) 3.

209 Improved performance in the area of social security, notably, took the form of a
reduction in the time needed to process grant applications: ‘Govt speeds up service
delivery’ South Africa.info 13 September 2012 http://www.southafrica.info/services/
government/service-delivery-130912.htm#.UNQHPm-TxQQ (accessed 22 December
2012).
210 Grootboom (n 64 above) para 45. See also Treatment Action Campaign & Others v Minister
of Health & Others 2002 (4) BCLR 356 (T) 380-381.
211 Art 1(b).
212 Art 3(e).
213 Art 3(g).
214 Art 13(1)(b).
 Implementing domestic workers’ social security rights within transformative constitutionalism 151

Thus, both section 27 of the Constitution and the 2012 ILO

Recommendation project the progressive building and maintenance of a
social security system that can accommodate informal workers, including
domestic workers. Merely expanding the range of social assistance
measures available to specific groups of workers would reflect an
affirmative strategy to remedy maldistribution experienced by such
workers which may unjustly marginalise them as recipients of ‘welfare’
and ‘hand-outs’ without recognition of their contribution to society at
large.215 An argument has therefore been made that a transformative
model, aimed at removing the underlying causes of unjust distribution of
resources, should be seen as the point of departure.216 A transformative
strategy, in the context of social security, has as its aim the provision of
universal benefits and the promotion of solidarity through the
empowerment of marginalised workers and giving effect to their right to
substantive equality both as workers and citizens.217 ‘Progressive
implementation’ of the right to social security is accordingly considered in
this framework.

This is not to suggest an absolute division between affirmative and

transformative approaches.218 Liebenberg highlights the potential of a
universal basic income grant as an affirmative strategy that may have
transformative effects.219 It would, she argues, combine assistance in
meeting basic needs with ‘the security and space needed both for greater
participation in economic activities as well as popular mobilisation around
deeper reforms’.220 As the grant would be payable to everyone it could be
transformative and empowering also for domestic workers, rather than
marginalising them, as long as it forms part of a transformational agenda
and does not focus purely on economic redistribution. As Robeyns puts
it:221

While many women who currently have no income of their own would fare
better in economic terms if an unconditional basic income were implemented,
the gendered nature of decision-making within families will induce some
employed women to work less on the labour market: in addition, a basic
income would do nothing to change the traditional gender division of labour.

215 See part 3.10 of Chapter 2 (above).

216 Fraser & Honneth (n 103 above) 74; Liebenberg (n 102 above).
217 Liebenberg (n 102 above) 9. See part 4.4 of Chapter 2 (above) for discussion of Fraser’s
theory of social justice and the distinction between affirmative and transformative
strategies.
218 Thus, sec 9(2) of the Constitution explains the meaning of ‘equality’ as follows:
‘Equality includes the full and equal enjoyment of all rights and freedoms. To promote
the achievement of equality, legislative and other measures designed to protect or
advance persons, or categories of persons, disadvantaged by unfair discrimination may
be taken’. Without such affirmation, it is implied, certain patterns of inequality arising
from past discrimination would remain untransformed’.
219 It may, in other words, be seen as an example of what Fraser calls ‘non-reformist
reforms’.
220 Liebenberg (n 102 above) 10.
221 I Robeyns ‘Is Nancy Fraser’s critique of theories of distributive justice justified?’ (2003)
10 Constellations 538 542.
152 Chapter 4

Hence, from a feminist perspective a basic income should only be advocated if

it is accompanied by a politics that combats gender inequities and changes
gender roles, i.e., deconstructs gender as we know it.

The proposed creation of a national retirement funding system based on

social solidarity222 is another example of a potentially transformative
social security strategy. Basing the new system on a universal social
assistance benefit with no means test (as a first ‘pillar’) would ensure that
many more persons who were informally employed during their working
years are reached. Of course, compulsory membership of the proposed
national retirement fund (the second ‘pillar’) would be a prerequisite for
addressing the current marginalisation of lower-paid employees, such as
domestic workers. If mandatory membership were to be combined with
measures to subsidise contributions, lower-income employees will not be
faced with the dilemma of choosing between meeting their immediate
needs and participating in a social security fund. As Albertyn and
Goldblatt observe, transformation ‘entails the development of
opportunities which allow people to realise their full human potential
within positive social relationships’.223 A national social security fund
could provide all employees, therefore also domestic workers, with ‘parity
of participation’.224 Much of the transformative potential of the
participation of domestic workers in the proposed national fund, it is
suggested, will be found in the solidarity created between higher earning
members and those with low and irregular earnings.

However, the quote above from Robeyns applies equally in the context
of a national retirement fund as a transformative strategy. Improving
domestic workers’ access to social security is only one step towards the
goal of empowering domestic workers to participate in transforming their
lives.225 This underlines the need for a holistic approach in addressing the
numerous challenges bound up with this central objective. For example,
meaningful progress towards the incorporation of domestic workers in
social insurance programmes, requiring the collection of contributions
from workers and employers, would depend on the effective organisation
and empowerment of domestic workers for this purpose (as discussed in
Chapter 7 below) as much as on the reform of regulatory agencies. The
recommendations contained in this chapter must accordingly be read in
this light and in the context of the chapters that follow.

222 See 2.3 (above).

223 C Albertyn & B Goldblatt ‘Facing the challenge of transformation: Difficulties in the
development of an indigenous jurisprudence of equality’ (1998) 14 South African
Journal on Human Rights 248 249.
224 See the discussion in part 2.3.2.2 of this chapter (above).
225 Olivier (n 21 above) 14-15. The empowerment and organisation of domestic workers is
discussed in part 3 of Chapter 7 (below).
 Implementing domestic workers’ social security rights within transformative constitutionalism 153

6 Conclusion

From the discussion above it is clear that workers in less regulated parts of
the economy, and domestic workers in particular, do not enjoy adequate
social protection and that current social security measures do not
adequately fill the gaps in the protection offered by labour law.

We have seen that most domestic workers are effectively excluded

from current social insurance measures in South Africa. Social assistance
benefits therefore take on prominence to the extent that they compensate
for the lack of access to social insurance benefits. However, social
assistance cannot be seen as a solution due to the forms of marginalisation
which it entails. Given domestic workers’ equal right of access to social
security and social protection, it has been argued, the way forward must
entail a transformative strategy that would restructure the regulatory
framework and institutions in the area of social security in such a way that
they will be capable of meeting the constitutional standard.

The creation of a national social security system, possibly including

universal social assistance in the form of a non-means-tested older person’s
grant, has been identified as a central part of such a strategy. Such a system
would include, possibly on a basis of cross-subsidisation, domestic workers
and other workers outside formal employment. The constitutional
imperative to develop such a system, it has been argued, is highlighted by
domestic workers’ role in providing care for children and the aged which
is constitutionally incumbent on the state while being deprived of access to
equivalent childcare and support in caring for older and disabled family
members during their working lives. In this and other ways it has been
attempted to show that the extension of social protection to domestic and
other informal workers, while constituting an important aspect of ‘decent
work’, has transformative implications for society as a whole.

The process of extending social protection to domestic workers to

enable them to cope with ‘transitions’ in their lives will not be without
challenges and the decision on how exactly to improve their access to
social security should not be taken lightly and without participation by
domestic workers and employers. Extensive research should accompany
the process and experiments in other countries for promoting legal
compliance should be examined in the context of developing institutions
capable of supporting a transformative strategy, as discussed more fully in
Chapter 5. Measures such as the fiscal incentives provided to employers of
domestic workers in Brazil to promote compliance with domestic workers’
social security rights are of interest because of their connection to ‘a
broader public agenda aimed at curbing the huge, historical divide between
the rich, white stratum of society and the poor, dark bottom of the social
ladder’.226 Similarly, it is imperative that improvements in social security
provision to domestic workers in South Africa form part of long-term
154 Chapter 4

strategies to ensure that gains are not ‘undermined by countervailing

discourses or contexts’.227

However, it has been emphasised that social security reform is only

one aspect of counteracting the marginalisation of domestic workers and
cannot be seen in isolation from the measures suggested in other chapters
of this book for addressing the causes rather than the symptoms of their
social exclusion. It has also been argued that this challenge may need to be
addressed in a context of on-going global economic uncertainty and
pressure on the resources available for social spending. This, however,
should not be a reason to deviate from the path of extending social
protection to workers in less regulated environments. According to the
ILO, appropriate responses to the global crisis must include ‘development
that more effectively creates jobs and sustainable enterprises, respects
workers’ rights, promotes gender equality, protects vulnerable people’.228
The importance of social security as a strategy to protect vulnerable people
against poverty during turbulent economic times is highlighted in the
preamble to the 2012 ILO Recommendation concerning national floors of
social protection, where it is stated that:

[S]ocial security is an investment in people that empowers them to adjust to

changes in the economy and in the labour market, and … social security
systems act as automatic social and economic stabilizers, help stimulate
aggregate demand in times of crisis and beyond, and help support a transition
to a more sustainable economy.

As opposed to the ‘neo-liberal’ view of increased public spending,

particularly on social security measures, as part of the problem and seek
cut-backs and privatisation of as a means of addressing it,229 the ILO
supports the creation by member states of national basic social security
guarantees and the extension of social security230 as part of a strategy
towards a socially inclusive and more sustainable economy. The inclusion
of informal workers in such a strategy is specifically highlighted.231 It is
suggested that a shift in focus from the ‘affordability’ of creating social
security programmes that can cater for workers such as domestic workers
to viewing such programmes as an ‘investment in people’ should feature
more prominently in policy debates.

The fact that a completely new social security system for South Africa
is under discussion at a time of global economic turbulence offers an
opportunity to design a social security system that is capable of providing

226 Tomei (n 132 above) 205.

227 Williams (n 171 above) 23.
228 ILO ‘Recovering from the crisis: A global jobs pact’ (2009) para 7 http://www.ilo.org/
wcmsp5/groups/public/@ed_norm/@relconf/documents/meetingdocument/wcms
_115076.pdf (accessed 28 June 2013).
229 See Chapter 1 (above).
230 ILO (n 2 above) art 1.
231 Art 3(e) read with Art 15.
 Implementing domestic workers’ social security rights within transformative constitutionalism 155

access to social security to domestic workers and other non-standard

workers, while at the same time contributing to a more sustainable and
productive economic order.
 5
CHAPTER
NURTURING A CULTURE OF
COMPLIANCE WITH
DOMESTIC WORKERS’ RIGHTS
IN SOUTH AFRICA

Pamhidzai Bamu

1 Introduction

South Africa’s constitution guarantees everyone a right to dignity,

equality, freedom and fair labour practices. Transformative
constitutionalism, as discussed in Chapter 2, envisages a commitment to
ensure the design and implementation of policies to bring about the social
change that is needed to give effect to these rights. Domestic workers
comprise a significant proportion of South Africa’s workforce that has
historically been undervalued and marginalised. Their inclusion in the
labour law regime that has been established since 1995 was a significant
development. The current framework, setting out the rights and
obligations of domestic workers and their employers, is discussed in
Chapter 3.

This chapter sets out to determine the extent to which these rights have
been translated into reality and what measures are being taken to ensure
that employers comply with the legislative framework. It considers the
state of compliance with domestic workers’ rights in South Africa, drawing
on a number of quantitative and qualitative studies, and identifies various
historical, socio-economic, institutional and other barriers to compliance.
It argues that the primary goal of the regulation of domestic workers’ rights
should be to build a culture of compliance in which employers’ respect for
the relevant legislation is the norm.

2 Framework for ‘enforcement’ and ‘compliance’

This part considers the framework for the enforcement of domestic

workers rights. It begins by outlining what is meant by the concepts of
‘enforcement’ and ‘compliance’. This is followed by a discussion of the
ILO’s understanding of enforcement in relation to inspection and in
relation to domestic workers in particular. Finally, the discussion turns to

157
158 Chapter 5

the institutions and mechanisms for the enforcement of labour legislation

in the domestic work sector in South Africa.

2.1 Understanding ‘compliance’ and ‘enforcement’

Craigie et al define compliance as ‘obedience to a request or command’.1 It

can therefore be regarded as a factual state; that is, an objective question of
whether the relevant persons obey the request/command or not.
Compliance can also be understood as an ‘ideal situation in which all the
members of a legal community adhere to the [applicable] legal standards
and requirements’.2 In this sense, compliance is a goal which governance
and regulation seek to achieve and the end that members of the community
must strive towards.

If compliance is the desired state of adherence to legal standards,

‘enforcement’ can be defined as a range of actions taken by government
and other institutions or individuals to achieve compliance within the legal
community and to halt instances of non-compliance.3 It may include
forms of legal compulsion but is not confined to this. Thus, enforcement in
this broad sense can be understood as the means by which compliance is
brought about.

Two theories that explain why members of society comply with laws,
namely the ‘rationalist’ and the ‘normative’ theories, may be noted. The
rationalist theory views the individual as a rational being focused on
maximising economic – or other – self-interest and whose decision to
comply is based on an assessment of the cost of non-compliance.4 The
rational human actor, viewed in this way, thus applies the ‘logic of
consequences’ and chooses to comply with laws if the cost of non-
compliance is perceived as exceeding the cost of compliance with law.5

Following the rationalist perspective, traditional enforcement

measures have been designed to achieve compliance by deterring unlawful
behaviour through the use of criminal, administrative and civil penalties.6
These have been characterised as deterrence-based or ‘command and

1 F Craigie et al ‘Dissecting environmental compliance and enforcement’ in AR

Paterson & LJ Kotzé (eds) Environmental compliance and enforcement in South Africa:
Legal perspectives (2009) 41.
2 Craigie et al (n 1 above) 41.
3 Craigie et al (n 1 above) 44.
4 Craigie et al (n 1 above) 42-43.
5 D Grossman & D Zaelke ‘An introduction to theories of why states and firms do (and
do not) comply with law’ Paper presented at the Seventh International Conference on
Environmental Compliance and Enforcement, 9-15 April 2005 73 74.
6 LC Paddock ‘Beyond deterrence – Compliance and enforcement in the context of
sustainable development’ accessed from the International Network for Environmental
Compliance and Enforcement http://inece.org/resource/beyond-deterrence/
(accessed 12 August 2012).
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 159

control’ measures of enforcement,7 typically aimed at promoting a

perception of the severity of penalties and/or the likelihood that non-
compliance will be detected and punished. 8

The ‘normative’ theory, in contrast, views human and other actors as

‘good faith compliers’ who believe that laws that are legitimate and that are
implemented fairly should be obeyed.9 It proceeds from the assumption
that, while the regulated community generally seeks to comply with the
law, it may be unable to do so for reasons such as lack of awareness,
shortage of resources or the shortage of appropriate incentives.10
Enforcement measures based on this approach accordingly focus on more
cooperative strategies to secure compliance, including incentives and
‘compliance assistance’ measures such as technical assistance, public
education and inspections aimed at providing advice for compliance.11

Of particular importance in this context is the model of ‘meaningful

engagement’ developed by the Constitutional Court as a means towards
the enforcement of socio-economic rights.12 In contrast to the ‘command-
and-control’ approach, this model has focused on ‘the role of dialogue in
resolving the tension between individual property rights and the social
responsibility to fulfil the right to adequate housing’.13 A parallel may be
drawn with the process of enforcing the rights of domestic workers where,
similarly, the tension between the property and economic rights of
employers and the ‘social responsibility’ to give effect to the labour rights
of the workers needs to be resolved in order to arrive at an effective model.
‘[E]ngagement in disputes about transformative obligations’, Hepple
proposes, should be treated ‘not as bargaining but primarily as a process of
exchange of information and learning about the parties’ respective
positions, leading to a better understanding of the issues, followed by
persuasion based on reasoned argument, with a view to reaching
agreement’.14 As such it may be understood as an aspect of responsive or

7 DL Markell ‘The role of deterrence-based enforcement in a “reinvented” state/federal

relationship: The divide between theory and reality’ 24 Harvard Environmental Law
Review 1 10.
8 Grossman & Zaelke (n 5 above) 76-77.
9 Paddock (n 6 above) 2; Grossman & Zaelke (n 5 above) 77.
10 Craigie et al (n 1 above) 43.
11 Markell (n 7 above) 9; Grossman & Zaelke (n 5 above) 77.
12 Government of the Republic of South Africa v Grootboom & Others 2001 (1) SA 46 (CC); Port
Elizabeth Municipality v Various Occupiers 2005 (1) SA 217 (CC); Residents of Joe Slovo
Community, Western Cape v Thubelisha Homes & Others (Centre on Housing Rights and
Evictions & Another, Amici Curiae) 2010 (3) SA 454 (CC); discussed in B Hepple
‘Negotiating social change in the shadow of the law’ (2012) 129 South African Law
Journal 248 256ff.
13 Hepple (n 12 above) 257.
14 Hepple (n 12 above) 270.
160 Chapter 5

reflexive regulation (as discussed in the Introduction and Chapter 1

above).15 To the extent that ‘enforcement’ is understood as a process
separate from rule-making, however, it may be seen as adding a fourth
dimension to the three-dimensional model for effective regulation
proposed in Chapter 2: it calls for employers and workers to be involved in
the process not only of formulating rules driven by the transformative
values of constitutionalism and decent work, but also in applying them in
practice.16

It is important to note that rationalist and normative approaches are

not mutually exclusive. An enforcement strategy based on engagement
between the actors does not exclude the possibility of reliance on deterrent
sanctions as a last resort. All it does is to assert the need for engagement as
a primary mechanism and the objective of achieving compliance by means
of persuasion rather than compulsion. ‘Enforcement’ in the remainder of
the chapter should be understood in this sense.

2.2 Relevant international law relating to enforcement of

labour rights

The Decent Work for Domestic Workers Convention, 2011 (No 189) is the
first ILO instrument that specifically governs the enforcement of domestic
workers rights. Labour inspection and the enforcement of the rights of
workers in general are governed by the ILO conventions on Labour
Inspection in industry and commerce, 1947 (No 81) and Labour
Inspection (Agriculture), 1969 (No 129). Although the latter Conventions
are not applicable to domestic workers, they provide some insight into the
ILO’s understanding of inspection and enforcement prior to Convention
189.

Article 3(1) of Convention 81 sets out the three main functions of a

labour inspectorate. The first is to secure the enforcement of legal
provisions governing working conditions and the protection of workers,
including those governing working hours, wages, safety and health
welfare.17 The second is to inform and advise employers and workers
about the most effective means of complying with the legal provisions.18

15 As noted in Chapter 3 above, through meaningful engagement ‘a close relationship is

created between the process of creating regulation and the process of seeking
compliance, in the last resort by enforcement: it is implicit that everyone concerned
(and workers in particular) should take ownership of their rights and participate
actively in their realisation, rather than passively expecting the state and courts to
realise these rights on their behalf ’: see part 3 of Chapter 3 above.
16 For a discussion of the principles of ‘meaningful engagement’ see Hepple (n 12 above)
258-260. Of particular importance in the context of engagement on the regulation of
domestic work, it is submitted, are the principles of transparency, an open-ended
agenda and sensitivity to the power imbalance between employers, state institutions
and workers, as discussed by Hepple.
17 Convention 81, art 3(1).
18 As above.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 161

Thirdly, the inspectorate must notify the competent authority of defects or

abuses that are not specifically covered by the existing legal provisions.19

Convention 81 further provides that labour inspectors must be

empowered to enter a workplace20 and carry out any enquiry necessary to
determine whether legal provisions are being observed.21 Labour
inspectors must also be empowered to take action to remedy any issues
that may constitute a threat to the health and safety of workers.22 The
Convention requires member states to provide adequate penalties for
violations of legal provisions and to ensure that these are effectively
enforced.23 In terms of Article 17, those who violate or fail to observe the
legal provisions shall be liable to prompt legal proceedings without
previous warning.24

Article 12 of Convention 81 allows labour inspectors to enter

workplaces at any time without prior notice and without having to inform
the employer of their presence. Because the Convention deals with
industrial and commercial undertakings, it does not cover private
households. ILO Convention 129 governing agricultural workers prohibits
a labour inspector from entering a private home without the consent of the
operator or special authorisation from the competent authority.25 In its
General Survey on Labour Inspection, the Committee of Experts on the
Application of Conventions and Recommendations in 2006 noted that
most jurisdictions either restricted or prohibited access to private homes for
the purposes of labour inspection.26 The Committee stressed the need to
observe ‘strict respect for privacy’.27

The Domestic Workers Convention (hereafter Convention 189)

provides that each ratifying state should ensure that it establishes effective
and accessible complaint mechanisms and means of ensuring compliance
with national laws and regulations for the protection of domestic

19 As above.
20 Convention 81, art 12.
21 Convention 81, art 12(1)(c).
22 Convention 81, art 13.
23 Convention 81, art 18.
24 However, national legislation may make exceptions for cases where prior notice to
carry out remedial or preventative measures must be given. Labour inspectors must
have discretion whether to give a warning and advice instead of instituting
proceedings: Convention 81, art 17(1).
25 Convention 129, art 16(2).
26 Report of the CEACR General Survey of the reports concerning the Labour Inspection
Convention, 1947 (No 81), and the Protocol of 1995 to the Labour Inspection Convention, 1947,
and the Labour Inspection Recommendation, 1947 (No 81), the Labour Inspection (Mining
and Transport) Recommendation, 1947 (No 82), the Labour Inspection (Agriculture)
Convention, 1969 (No 129), and the Labour Inspection (Agriculture) Recommendation, 1969
(No 133) Report III (part 1B) submitted to the 95th Session of the International Labour
Conference, Geneva (2006) 84-85. This shall be referred to as the General Survey on
Labour Inspection.
27 General Survey on Labour Inspection (n 26 above) 84-85.
162 Chapter 5

workers.28 In addition, states should develop and implement measures for

labour inspection, enforcement and penalties with due regard for the
special characteristics of domestic work.29 It also provides that ‘such
measures shall specify the conditions under which access to household
premises may [be] granted, having due respect [to] privacy’.30
Furthermore, article 16 of Convention 189 requires that domestic workers
and their representatives must have equal access to courts, tribunals or
other dispute resolution mechanisms as other workers.31

The Domestic Workers Recommendation, 2011 (No 201)32 also calls

on member states to consider establishing mechanisms to protect workers
from harassment, abuse and violence including a complaints mechanism
for workers to report such cases, ensuring that all complaints are
investigated and providing for the relocation and rehabilitation of
domestic workers who have been subjected to abuse.33 Article 19 of the
Recommendation requires member states to provide for adequate and
appropriate occupational health and safety inspection systems and
adequate penalties for occupational health and safety infringements.
Article 21 suggests establishing a national hotline for domestic workers
needing assistance, providing for pre-placement visits to the homes of
prospective employers of domestic workers and developing a network of
emergency housing.34 In addition, it recommends awareness-raising
exercises to ensure that employers understand their obligations and are
exposed to good practices and that domestic workers know their rights and
options.35

In summary, Convention 189, as amplified by Recommendation 201,

incorporates both deterrence-based and cooperative measures to ensure
compliance with legislation. Recognising the unique nature of domestic
work and the circumstances of domestic workers, it envisages a broader
range of actors and measures to ensure compliance than the traditional
measures that are the focus of Conventions 81 and 129. The awareness-
raising exercises and other measures proposed by Recommendation 201

28 Convention 189, art 17(1). South Africa ratified the Convention on 7 June 2013 and
the ratification was registered by the ILO on 20 June 2013: ILO Ratifications of C189
– Domestic Workers Convention, 2011 (No 189) http://www.ilo.org/dyn/normlex/
en/f ?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:2551460 (accessed
30 June 2013).
29 Convention 189, art 17(2).
30 Convention 189, art 17(3). To this, art 24 of Recommendation 201 adds that member
states may consider conditions under which a labour inspector may enter the
workplace.
31 Art 21 of Recommendation 201 adds that member states should take steps to ensure
that domestic workers have access to civil and criminal remedies both during and after
employment, even after they have left the country concerned.
32 Recommendation 201 (hereafter ‘the Recommendation’) supplements Convention 189
with additional guidelines for the protection of domestic workers.
33 Recommendation 201, art 7.
34 Recommendation 201, art 21.
35 As above.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 163

provide a basis for meaningful engagement towards building a culture of

compliance in the sector.

2.3 How are domestic workers’ rights enforced in South

Africa?

Chapters 2 and 3 have shown how South African labour law gives effect to
the substantive values and labour and social security rights of domestic
workers enshrined in the Constitution as well as certain limitations of the
existing law. This section considers the institutions that South African
legislation has established to secure the protection of those rights.

The constitutional basis for the enforcement of domestic workers’

rights is found in sections 23, 33 and 34 of the Constitution. Section 23(1)
guarantees the right to fair labour practices which, interpreted purposively,
must include the practical implementation of that right as well as access to
the effective resolution of work-related disputes. Section 33 enshrines the
right to administrative action that is lawful, reasonable and procedurally
fair. Section 34 guarantees the right to have ‘any dispute that can be
resolved by application of law decided in a fair public hearing before a
court or … another independent and impartial tribunal or forum’.

The legislature has given jurisdiction and powers to different

institutions to promote and enforce compliance with these substantive
rights. The most important of these in practice are the Department of
Labour (DoL) inspectorate, the CCMA and the Labour Court. The DoL
inspectorate is responsible for enforcing and securing compliance with
Sectoral Determination 7 (SD 7),36 the Basic Conditions of Employment
Act 75 of 1997 (BCEA), the Unemployment Insurance Act 63 of 2001
(UIA) and the Occupational Health and Safety Act 181 of 1993 (OHSA).37
The CCMA and the Labour Court enforce the right not to be unfairly
dismissed or subjected to unfair labour practices. Enforcement measures in
terms of these statutes are discussed below.

2.3.1 The Basic Conditions of Employment Act and the

Unemployment Insurance Act

In terms of section 64(1) of the BCEA, labour inspectors are empowered

to ‘promote, monitor and enforce compliance with an employment law’.
They may do so inter alia by educating employees and employers as to

36 Sectoral Determination 7: Domestic Workers Sector Government Gazette 15 August

2002 (SD 7).
37 See sec 63 of the BCEA, sec 38 of the UIA and secs 27 and 28 of the OHSA. The
inspectorate is also responsible for enforcing Chapter III of the Employment Equity
Act 55 of 1998 which, in practice, does not find application in the domestic sector.
164 Chapter 5

their legal rights and obligations.38 Labour inspectors may also conduct
inspections at the workplace and investigate complaints.39 In order to do
so, they may enter and inspect the workplace, question any person, and
require the disclosure of information.40

Labour inspectors’ powers of entry are regulated by section 65(1),

which allows a labour inspector to enter a workplace without notice or
warrant at any reasonable time. In the case of a private home, however, the
inspector must have either the consent of the owner of the home or an
order of the Labour Court authorising entry.41 Such an order may be
obtained on the inspector’s written application giving reasons for the need
to enter the premises to monitor or enforce compliance with any labour
law.42

Having said that, the Department of Labour inspectorate makes

serious efforts within the limits of its resources to enforce SD 7. In addition
to reactive inspections carried out in response to specific complaints, the
inspectorate carries out periodic ‘blitz’ inspections in different sectors to
measure and enforce compliance with the BCEA and sectoral
determinations. These are carried out for a week in each of the provinces.
In addition, provincial DoL offices sometimes use their discretion to carry
out a domestic sector blitz in the province or in areas identified as
problematic when it comes to compliance. In addition to these proactive
measures, the inspectorate responds to reports and complaints of non-
compliance with legislated minimum working conditions.

The limitations on entry into private homes were clearly designed to

protect the constitutional right to privacy, which includes the right not to
have one’s person or home or property searched.43 They are also in line
with accepted international norms on the issue, and specifically with the
provisions of Convention 189 and Recommendation 201, discussed above.
Although there is a perception that these provisions unduly restrict
inspectors’ powers of enforcement and help to explain the low level of
compliance in the domestic sector, there is no evidence that this is the
case.44 The true reasons, it will be argued below, lie in the unique
conditions of the sectors and the inappropriateness of existing institutions
in addressing these conditions.

38 BCEA, sec 64(1).

39 BCEA, sec 64(1).
40 BCEA, secs 65 and 66.
41 BCEA, sec 65(2).
42 BCEA, sec 65(3).
43 The Constitution, sec 14.
44 Eg, a report on inspections carried out at 576 homes in the Western Cape in 2009
states that ‘[m]ost employers were eager to meet the inspectors and were co-operative’:
DoL Report on the domestic worker sector blitz conducted from 2-12 February 2009 and the
follow-inspections conducted 2-12 March 2009 in the Western Cape (16 March 2009,
unpublished) 10.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 165

Enforcement in terms of the UIA is similar to that of the BCEA, and

involves inspections by labour inspectors, who may secure undertakings by
employers or issue compliance orders against non-compliant employers.45

2.3.2 The enforcement procedure and changes envisaged by the Basic

Conditions of Employment Act Amendment Bill46

Proposed amendments to the BCEA have been put forward in the BCEA
Amendment Bill, which was before Parliament at the time of writing. The
Amendment Bill seeks to address some of the perceived problems relating
to the enforcement of the BCEA. In particular, it amends provisions
relating to undertakings, compliance orders, penalties for non-compliance
and the jurisdiction of the Labour Court. In November 2012 the
Parliamentary Portfolio Committee for Labour discussed the draft
provisions and there was broad consensus regarding the proposed
amendments relating to enforcement.47 Given the similarities between the
enforcement provisions of the BCEA and those of the UIA, it is envisaged
that the amendments that will be passed in respect of the former will
subsequently be passed in relation to the latter.

The existing BCEA requires labour inspectors to first attempt to secure

compliance through negotiations and consensus-building before
embarking on penal measures. Thus, a labour inspector who has
reasonable grounds to believe that an employer has failed to comply with
their obligations must try to secure a written undertaking to comply.48
Clause 9 of the Amendment Bill seeks to give a labour inspector the
discretion to determine whether or not to secure a written undertaking
from a non-compliant employer. The Bill further seeks to introduce a
provision to make a written undertaking more directly enforceable by
allowing the Director-General to apply to the Labour Court to have it
made an order of Court in the event that an employer does not comply with
it.49

A labour inspector who reasonably believes that an employer has not

complied with the BCEA may issue an employer with a compliance
order.50 Such an order must set out, inter alia, the measures that the
employer is required to take and the period within which the measures
must be taken.51 Clause 10 of the Amendment Bill seeks to amend section
69 of the BCEA by providing for a compliance order setting out the date

45 See (n 43 above) secs 8, 38-24.

46 Basic Conditions of Employment Act Amendment Bill 15 of 2012.
47 See Parliamentary Portfolio Committee on Labour ‘Basic Conditions of Employment
Bill [B 15-2012] Working Draft 1’ (7 November 2012).
48 Sec 68(1) of the BCEA.
49 Proposed new sec 68(3).
50 BCEA sec 69(1).
51 BCEA sec 69(2).
166 Chapter 5

by which the employer should serve any representations it may wish to

make to the DoL and to the Labour Court, as well as a deadline for the
employer to comply with a compliance order. Failing such compliance, an
application may then be made to the Labour Court without further notice
to the employer to have the compliance order made an order of court.

Section 71(1) of the BCEA at present allows an employer to object to

a compliance order by making written representations to the Director-
General of Labour. The Director General may then make an order
confirming, modifying or cancelling the compliance order after
considering the relevant facts,52 whereupon the employer may appeal to
the Labour Court against the Director-General’s order.53 The Director-
General may also apply to have a compliance order made an order of the
Labour Court if the employer has not complied with or objected to it.54

Clause 12 of the Amendment Bill seeks to repeal sections 71 and 72,

thus removing an employer’s right to object and appeal. According to the
Explanatory Memorandum to the Bill, this was necessary to prevent abuse
of the provisions by employers who use them as delaying tactics to stall the
enforcement process.55 Should the Director-General seek to have a
compliance order made an order of court, it is argued, the employer will
have the opportunity to be heard.

The Labour Court has exclusive jurisdiction in respect of all disputes

relating to the BCEA and may impose a fine for the contravention of any
provision of the Act.56 Schedule 2 to the Act sets out a sliding scale of fines
for contraventions. However, the Labour Court has no jurisdiction in
relation to criminal offences in terms of the Act,57 which fall within the
jurisdiction of the Magistrates’ Court.58

Clause 15 of the Bill proposes to amend section 77 of the BCEA to

extend the Labour Court’s exclusive jurisdiction to grant civil relief in
respect of prohibited conduct by employers, including criminal offences.
Clauses 16 and 17 of the Bill further seek to amend section 93 and Schedule
2 to the Act to double the maximum term of imprisonment from three
years to six years and increase the maximum fines, which have not been
amended since the Act came into operation, by 200 per cent.

52 BCEA, secs 71(3) and (4).

53 BCEA, sec 72.
54 BCEA, sec 73(1).
55 Item 3.6 of the Explanatory Memorandum to the Basic Conditions of Employment
Act Amendment Bill 15 of 2012.
56 Sec 77A(f) of the BCEA read with sec 77.
57 These relate to child labour; forced labour; breaches of confidentiality and obstruction,
undue influence or fraud in relation to the functions of labour inspectors: see BCEA,
secs 42, 44, 46, 48, 90 and 92.
58 Convicted offenders are liable to a fine or imprisonment ranging from maximum
periods of three years in the case of child labour and forced labour to one year for other
offences: BCEA, secs 93 and 94.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 167

The proposed amendments reflect an obvious concern at levels of non-

compliance considered to be unacceptable and determination to secure
higher levels of compliance. From a normative perspective, however, the
proposed amendments are a step in the wrong direction. The ‘command-
and-control’ approach which they embody is deeply inimical to developing
constructive engagement as a means of promoting the transformative
agenda of decent work as well as a culture of compliance. It also reinforces
the assumption that the state must act on workers’ behalf to the exclusion
of agency by workers themselves. The consequences of relying on punitive
measures in the domestic sector are likely to be highly damaging and
potentially disastrous. However, the amendments do not propose to
remove the power of inspectors to seek to obtain an undertaking to comply
from non-compliant domestic employers. It is to be hoped that inspectors
will continue to do so in the first instance and to appreciate the importance
of persuasion as a means towards greater compliance in the context of
domestic employment.

2.3.3 Enforcement of the Occupational Health and Safety Act

The OHSA provides for the designation of a chief inspector and inspectors
for the purposes of the Act.59 These inspectors have similar powers to
those of labour inspectors, including the power of entering a workplace
without notice.60 It is worth noting that this power is unqualified in
OHSA, and would therefore allow entry into private homes without prior
notice.61 Inspectors may issue written notices prohibiting actions that
threaten or are likely to threaten the health or safety of any person and
enforce these notices by barring access to the relevant part of the
workplace.62 An inspector may also investigate work-related incidents
which resulted or could have resulted in the injury, illness or death of any
person.63 An appeal against the decision of an inspector lies to the chief
inspector and an appeal against the decision of the latter lies to the Labour
Court.64

2.3.4 Enforcement of the Labour Relations Act and Employment

Equity Act

The institutional framework for enforcing workers’ rights in terms of the

LRA and EEA, and shortcomings in that framework from the standpoint

59 OHSA, secs 27 and 28.

60 OHSA, sec 29.
61 See OHSA, sec 29(1), which does not qualify the powers of entry without prior notice.
62 OHSA, secs 30(1) and (2).
63 The inspector’s report following the investigation or inquiry must be submitted to the
attorney-general, who must deal with it in terms of the Inquests Act 58 of 1959 or the
Criminal Procedure Act 51 of 1977: OHSA, secs 31(3) and 32(12).
64 OHSA, sec 35.
168 Chapter 5

of domestic workers, was discussed in Chapter 2.65 Domestic workers, like

all other workers, may approach the CCMA for conciliation of disputes
relating to unfair dismissal and unfair labour practices in terms of the LRA
and unfair discrimination in terms of the EEA.66 Should a dispute fail to
be resolved by conciliation, it may be referred to arbitration in cases
involving unfair dismissal – with the exception of automatically unfair
dismissal – and unfair labour practices or to adjudication by the Labour
Court in cases of automatically unfair dismissal and unfair discrimination.

3 What is the state of compliance with domestic

workers’ rights in South Africa?

Measuring compliance is no straightforward matter in a context of

multiple employer obligations and workers’ rights. It is, for example,
difficult to speak of compliance in terms of the percentage of employers
who comply where it is likely that many employers comply with some
obligations but not with others. Should such employers be regarded as non-
compliant or partially compliant? If the latter, what formula can be used to
calculate the degree of compliance and how should the various obligations
be weighted?

Given these difficulties, it may therefore be more appropriate to

consider compliance in relation to particular obligations. For purposes of
this study we distinguish between two broad sets of obligations. The first
relates to minimum employment conditions such as wages, working hours
and unemployment insurance deductions, which impose largely positive
obligations on the employer that are, for the most part, quantifiable. The
majority of these fall under SD 7 and, in the case of unemployment
insurance deductions, under the UIA. The second relates to legal
provisions which, for the most part, require employers to refrain from
certain conduct that amounts to unfair labour practices and unfair
discrimination.

A further question is whether compliance should be determined

objectively or subjectively. Determining compliance objectively involves
doings so on the basis of objective facts regardless of the intention of the
employer. On this approach, an employer who unwittingly pays above the
stipulated minimum wage may be said to have complied with that
requirement in a technical sense but not in the sense of voluntarily
submitting to a request or demand. Determining compliance on a
subjective basis, on the other hand, involves examining whether the
employer was aware of the legal requirements and consciously chose to

65 See parts 3, 5.2.7.1.1, 5.2.12 and 7.3 of Chapter 2 (above).

66 Chapter VIII of Labour Relations Act 66 of 1995 (LRA) and sec 10 of the EEA
respectively.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 169

comply. While this would be a more accurate reflection of compliance in

the true sense, in practice very few studies have tried to assess it. For
present purposes, therefore, compliance will be understood as the objective
state of affairs which is determined by a comparison of actual working
conditions and legislated standards.

However, this does not detract from the importance of methodologies

which take account of the employer’s state of mind or diminish the value
of a policy approach which seeks to raise awareness amongst employers
and convince them of the benefits of obeying the legal requirements and
the disadvantages of disobeying them. A sustainable culture of compliance
can be built on nothing less; it certainly cannot be based on chance. The
implications of this are considered in parts 5 and 6 of this chapter.

The remainder of this part is divided into two sections. The first
considers levels of compliance with the first category of employer
obligations discussed above; that is, those relating to domestic workers’
basic working conditions. The second section looks at compliance with
prohibitions of abusive practices. Compliance will largely be evaluated in
light of studies by researchers and institutions focusing on the domestic
sector. Where relevant, other sources, such as law reports and press
reports, will also be considered.

Eight studies dealing with the situation of domestic workers in South

Africa will be referred to. The methodologies vary widely and each study
has placed emphasis on different issues. At one end of the spectrum are
small-scale studies covering limited geographical areas and adopting a
qualitative approach to assessing compliance. At the other end are larger-
scale surveys covering several areas and assessing compliance more
broadly. The table below summarises the details of the studies which are
referred to in the discussion that follows.

Author(s) or Year Geographical Number of

institution location respondents
Community 2001 (Field work National 982 employees, 416
Agency for Social done in 2000) employers
Enquiry (CASE)67
Bothma & 2003 (field work Bloemfontein 270 employers
Campher 68 done in 2001)
Hertz 69 2004 National 12 000 to 15 500
employees

67 CASE Results of a survey on domestic workers and employers Commissioned by the DoL
and German Technical Co-operation (May 2001).
68 LJ Bothma & C Campher ‘Minimum wages for domestic workers: A comprehensive
analysis’ (2003) 35 Acta Academica 190.
69 T Hertz Have minimum wages benefited South Africa’s domestic service workers?
Development Policy Research Unit (2004).
170 Chapter 5

Blaauw & 2010 (field work Bloemfontein 132 employers, 132

Bothma70 done in 2007) employees
Social Law Project 2009 National 600 employees
171
Social Law Project 2009 National 200 employers
272
Marais73 2009 Emfuleni 68 employers
DoL74 2009 Western Cape 576 employers

The field work for two of the studies was conducted prior to the
promulgation of SD 7 when working conditions for domestic workers were
regulated only by the BCEA. These studies may therefore give some
insight into the impact that SD 7 has had on working conditions in the
sector.

3.1 Compliance with minimum working conditions

3.1.1 Written particulars of employment

Item 9 of SD 7 requires every employer to provide her/his domestic worker

with the written particulars of her/his employment.75 Although this is an
administrative requirement rather than a minimum standard, it is
nevertheless seen as essential in monitoring compliance with minimum
standards.

Source Written particulars

Community Agency for Social Enquiry 85% of domestic workers did not have
(CASE) an employment contract. 75% of
employers did not have an employment
contract.
Bothma and Campher In 1997, 17.5% of employers had given
their domestic workers a written
contract of employment. In 2001, 30.3%
of employers had concluded a written
contract with their domestic worker.

70 PF Blaauw & LJ Bothma ‘The impact of minimum wages for domestic workers in
Bloemfontein, South Africa’ (2010) 8 SA Journal of Human Resource Management Art
#216.
71 African Response ‘Domestic workers survey prepared for the Social Law Project at the
University of the Western Cape’ (2009, unpublished).
72 See Africa Response (n 71 above).
73 C Marais ‘Labour legislation in Emfuleni’s domestic worker sector: Awareness and
compliance’ (2009) 33 South African Journal of Labour Relations 65.
74 DoL, Western Cape Report on Domestic Worker Blitz conducted from 6-8 April 2009 in the
Western Cape (2009, unpublished). Though not formally a survey, the information
contained in the report is comparable to the data collated in the surveys referred to
above.
75 See discussion in part 5.2.9 of Chapter 3 (above).
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 171

Hertz 10% of domestic workers surveyed in

2001 had a written contract. By 2003,
this had risen to 25%.
Blaauw & Bothma 75.8% of domestic workers had written
contracts of employment.
Social Law Project 1 69.9% of domestic workers had a
written contract.
Social Law Project 2 74.1% of employers had given their
domestic workers a written contract.
Marais 59% of employers surveyed had
concluded a written contract of
employment with their domestic
worker.
DoL 27.7% non-compliance recorded
amongst employers surveyed.

The data shows a strong upward trend in the provision of written

particulars of employment, even between 1997 (when the BCEA was
promulgated) and 2002, when SD 7 came into effect. Since 2004 the
majority of domestic workers and employers surveyed declared that they
had written contracts. Arguably, this signifies that there is a shift towards
formalisation of work in the sector and growing recognition that domestic
workers are workers just like others.

3.1.2 Minimum wages

The table below summarises the key findings in relation to wages and seeks
to compare the actual wages to the minimum wages stipulated in SD 7. It
is important to highlight that SD 7 does not stipulate a uniform wage rate
for all domestic workers, but provides for differentiation based on several
factors. A key factor is geographical location, with wages being divided
into two areas, A (urban and peri-urban municipalities) and B (largely rural
districts). The wage rates in Area A are substantially higher than those
stipulated for in Area B. SD 7 also distinguishes between workers who
work for 27 hours per week or less and those working for more than 27
hours per week, with the former entitled to a higher hourly rate than the
latter. The Determination sets hourly, weekly and monthly wages in the
different categories.
172 Chapter 5

Source Minimum Actual wage Percentage

wage paying above
the minimum
wage
Community N/A Daily wage N/A
Agency for rates:
Social Enquiry < R10 7%
(CASE) R11-20 31%
R21-30 21%
R31-40 17%
R41-50 10%
R51-60 5%
R61-70 4%
R71 + 4%
Bothma & N/A Broken down according to N/A
Campher frequency of work, with average
hourly wages for each group:
1 day/week: R7.26
2 days/week: R6.65
3 days/week: R5.88
Full-time: R4.52
All categories: R6.19
Hertz Hourly wages: Mean hourly wage increased N/A
Area A:76 from R3.23 in 2001 to R4.01 in
R 4.10 2003.
Area B:
R 3.33

Monthly Mean monthly wage up from

wages: R505 in 2001 to R617 in 2003.
Area A:
R 800
Area B:
R 650
Blaauw & Daily wages:* Broken down according to N/A
Bothma > 27 hours/ frequency of work, with average
week: hourly wages for each group:
Area A: 1 day/week: R65.47
R 49.23 2 days/week: R63.52
Area B: 3 days/week: R62.37
R 39.36 Full-time: R47.99
All categories: R61.31
< 27 hours/
week:
Area A:
R 58.14
Area B:
R 47.16

76 ‘Area A’ refers to metropolitan areas and ‘Area B’ to other areas.

 Nurturing a culture of compliance with domestic workers’ rights in South Africa 173

Social Law Monthly Monthly wages: At least 21.8%

Project 1 wages: < R 500: 9.2% earned above
Area A: R 501-800: 17.2% Area A
R1340.95 R801-1000: 16.7% minimum
Area B: R1001-1200: 17.3% wage
R1097.40 R1201-1350: 11.4%
>R1350: 21.8% Refused: 6.3% At least 33.2%
earned above
Area B
minimum
wage
Social Law Monthly Monthly wages At least 19.1%
Project 2 wages: < R 500:18.5% earned above
Area A: R501-1000: 35.1% Area A and B
R 1340.95 R1001-1500: 24.5% minimum
Area B: R1501-2000: 14.3% wages
R 1097.40 >R2000: 4.8%
Refused: 3.1%
Marais Hourly wages: N/A 86% earned
> 27 hours: above
R 5.11 minimum
< 27 hours: wage
R 6.04
DoL Monthly N/A 2% non-
wages: compliance
Area A: with minimum
R1340.95 wages
Area B:
R1097.40

* Calculated from minimum hourly rate times 9 hours per day.

The above data highlights several challenges to determining the level of

compliance with minimum wages. One challenge is that the majority of
studies have, presumably for convenience, been undertaken in urban
locations falling under Area A, to the exclusion of rural areas. The data
above therefore largely reflects wage levels in areas where employers are
likely to be able to pay more than in rural areas. The national studies that
cover some rural areas fail to disaggregate the income data for Areas A and
B, making it impossible to determine the extent to which employers in
urban and rural areas respectively have complied with the minimum wages
that apply to them.

Three studies (Hertz, Bothma and Campher, and Blaauw and

Bothma) use mean wage rates to analyse income levels. Data based on this
approach shows that the average domestic worker in an affluent
Bloemfontein suburb in 2001 earned significantly more than the minimum
wage gazetted for Area A two years later. Significantly, the national figures
captured by Hertz indicate that the average South African domestic worker
in 2003 earned less than the minimum monthly wages gazetted for Areas
A and B. But, although the mean wage rates provide some insight into how
the ‘median domestic worker’ fares, this masks the vast disparities between
174 Chapter 5

the highest and lowest earners and does not indicate the proportions of
domestic workers that are situated at different points along the spectrum.

Several of the studies measure income levels according to monthly

wages. In the absence of a correlation of monthly earnings against the
actual days or hours worked per month, it is difficult to determine the rate
at which domestic workers are actually being remunerated for their labour.
Aggregated monthly wages also make it difficult to determine the
compliance of individual employers in the case of workers who have
multiple employers. The two studies (Marais and DoL) that do make a
direct comparison between actual wages and minimum wages are a
localised micro-study and a provincial investigation indicating high levels
of compliance of 86 and 98 per cent. The extent to which these figures
reflect national levels of compliance is highly questionable.

3.1.3 Other pay-related conditions

SD 7 regulates a number of other pay-related matters.77 Item 6 states that

every employer must furnish the domestic worker with a statement every
payday providing details such as the time worked, ordinary working hours
and overtime. Item 7 lays down several prohibitions concerning pay, such
as withholding of payment in respect of the supply of work clothing or the
levying of fines. Finally, item 8 prohibits an employer from making
deductions from a domestic worker’s pay, with certain exceptions.78

Data on compliance with these obligations is scarce, with Marais’

study and the DoL report being the only ones covering this. Marais’s
micro-study in Emfuleni revealed that only 31 per cent of employers
surveyed provided written particulars of payment and only 47 per cent
discussed the wage calculations. The DoL report reveals that 27.4 per cent
of employers covered in the Western Cape did not provide their employees
with written particulars of employment. Furthermore, 8.1 per cent of these
employers had made deductions for accommodation and loan repayments
that exceeded the 10 per cent limit.

3.1.4 Hours of work

SD 7 provides for various matters relating to working time, including

ordinary hours of work, overtime, rest periods and stand-by.79 In this
section we look at compliance with ordinary working hours, overtime,

77 See discussion in part 5.2.8.2 of Chapter 3 (above).

78 These include deductions for accommodation provided or loans made by the
employer, provided these do not exceed 10% of the pay due to the domestic worker. An
employer may also make deductions for the worker’s trade union subscriptions,
housing loan repayments, social security schemes and rentals subject to the worker’s
written consent.
79 See part 5.2.8.1 of Chapter 3 (above).
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 175

Sunday work and public holidays, as these have featured most

prominently in studies on working conditions of domestic workers.

Ordinary working hours

Item 10 provides for a working week of up to 45 hours and a working day

of up to 9 hours for those working for five days a week or less. Domestic
workers who work for more than five days a week may not work for more
than 8 hours a day.

Source Maximum Actual working Percentage

working hours hours working within
the maximum
hours
Bothma & N/A Average of 6.9 80% worked
Campher hours per day between 5 and 9
hours per day
Hertz Maximum 9 hours N/A Average working
a day for more than hours reduced to
5-day week or 8 under 45 hours per
hours for a 5-day week since
week. promulgation of
Maximum 45 SD 7
hours per week
Blaauw & Bothma See above Average of 7 hours N/A
per day
Social Law Project See above N/A 76.2% work 8
1 hours or less per
day
Social Law Project See above N/A 97.6% required
2 domestic workers
to work 8 hours or
less per day
Marais See above Up to 12 hours per 100% worked 12
day hours or less per
day74
DoL See above N/A 99% compliance
with ordinary
working hours

The studies indicate that a significant majority of domestic workers

surveyed ordinarily worked less than nine hours per day. While there were
reports of some being required to work for up to 12 hours per day, this was
the exception.

80 12 hours is the maximum number of working hours per day including overtime.
176 Chapter 5

Overtime hours and payment

Item 11 provides that a domestic worker may only work overtime if it is so

agreed between the worker and the employer. A worker may not work for
more than 12 hours on any day including overtime or work for more than
15 hours’ overtime per week.81 In terms of item 12, an employer must pay
one and a half times the usual rate for overtime or grant the worker 90
minutes off for each hour of overtime worked.

Author Overtime hours worked Pay for overtime

Community Agency for About 37% of the 55% of domestic workers
Social Enquiry (CASE) domestic workers said said overtime work was
they worked overtime not rewarded

13% of employers
indicated that overtime
was not rewarded
Social Law Project 1 13% of domestic workers 14.9% of the domestic
said that overtime was workers cited non-
provided for in their payment for overtime as a
employment contract problem and 0.9% said
they found that this was a
positive aspect of their
employment
Social Law Project 2 10.7% of employers N/A
surveyed said that
overtime was provided for
in their employment
contract
Marais N/A 100% compliance with
overtime pay
requirements
DoL N/A 3.5% non-compliance
recorded

The table reveals limited data regarding overtime work by domestic

workers. None of the studies indicate how many hours of overtime work
the workers performed, making it impossible to determine whether
employers abide by the daily and weekly limits.

The CASE study conducted in 2000 highlights a significant degree of

non-compliance with the BCEA, whereas Marais’ study in Emfuleni and
the DoL’s Western Cape report nine years later indicate extremely high
levels of compliance. Given that the SLP’s national studies reveal a higher
level of complaints regarding overtime pay, one could conclude that the

81 SD 7, clause 11(b). The BCEA stipulates a maximum of 10 hours overtime per week:
sec 10(1)(b).
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 177

picture revealed in Emfuleni and the Western Cape does not necessarily
reflect the overall state of affairs.

Work on Sundays and public holidays

Item 17 of SD 7 requires an employer to pay a domestic worker double the

usual rate for occasional work done on a Sunday or one and a half times
the usual rate if Sunday work falls within the worker’s normal working
hours. In terms of clause 18 a domestic worker may only be required to
work on a public holiday in terms of an agreement. Where a public holiday
coincides with an ordinary working day, a domestic worker is entitled to
the normal daily wage if she or he does not work and double the daily wage
if she or he does work.

Source Sunday work Public holidays

Community Agency for 18% of domestic workers N/A
Social Enquiry (CASE) said they worked on
Sundays

10% of domestic workers

said they were paid more
than the weekday wage
for Sunday work

22% of employers said

they paid more than the
weekday for Sunday work
Social Law Project 1 13.7% workers reported N/A
that they worked on
Sundays
63.5% of these worked
every Sunday
Social Law Project 2 3.5% of employers N/A
reported they required
their domestic worker to
work on Sundays

30.8% of these worked

every Sunday
Marais N/A 73% of employers
complied with public
holiday pay requirements
DoL 2.9% non-compliance for 3.1% non-compliance
payment for Sunday work with public holiday pay
requirements
178 Chapter 5

A limited amount of information regarding work on Sundays and on

public holidays can be gleaned from the studies. The CASE and SLP
reports indicate that Sunday work is the exception to the rule. The CASE
report indicates that there was minimal compliance with BCEA
requirements for pay for Sunday work in 2000,while Marais’s study and
the DoL report point towards higher rates of compliance not only with
requirements relating to Sunday work but to those relating to public
holidays in the areas which they covered.

3.1.5 Leave

The regulation of leave by SD 7 covers annual leave, family responsibility

leave, sick leave and maternity leave.82 A domestic worker is entitled to
three weeks’ paid annual leave or one day per 17 days worked. A domestic
worker is entitled to paid sick leave per 36-month cycle equal to the
number of days worked in a six-week period. An employer must grant a
domestic worker five days’ family responsibility leave per year and four
consecutive months’ maternity leave.

Source Annual leave Family Sick leave Maternity

responsibility Leave
leave
Hertz Increased from N/A N/A N/A
17% in 2001 to
22% in 2003
Social Law 45.2% of 39.2% of 38.8 % of 8.6% of
Project 1 workers workers get workers get workers get
receive annual family sick leave maternity leave
leave responsibility
leave
Of these: 1-5 Of these,
days: 13.1% 75.3% get paid
*6-10 days: sick leave
18%
11-15 days:
23.3%
> 15 days:
26.2%
Don’t know:
19%

82 See clauses 19 to 22 of SD 7.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 179

Social Law 49% of 41.6% of 60.1% of 15.7% of

Project 2 employers said employers said employers said employers said
they grant they grant they grant sick they grant
annual leave, family leave; of those maternity leave
of these: responsibility 87.5% give
1-5 days: leave paid sick leave
11.8% while 12.5%
6-10 days: give unpaid
27.5% sick leave
11-15 days:
36.6%
> 15 days:
19.2%
Don’t know:
4.9%
Marais N/A 71% of N/A 67% allowed
employers the worker to
granted family return to work
responsibility at least 6 weeks
leave after childbirth
DoL 1.1% non- 0.54% non- 0.36% non- 0.36% non-
compliance compliance compliance compliance
recorded recorded recorded recorded

The above data provides a mixed picture. Hertz’s study shows that
compliance with the annual leave requirements came off a low base of less
than 25 per cent. The SLP studies, which cover all forms of leave and
capture both the employers’ and domestic workers’ experiences, indicate
that just under half of the employers and domestic workers granted or were
granted annual leave. However, a significant percentage of workers and
employers reported that annual leave amounted to ten days or less. In
some cases this may be due to part-time employment, which would entitle
workers to fewer days’ leave than their full-time counterparts. It is difficult,
therefore, to measure compliance with annual leave requirements as the
studies do not correlate the number of days’ leave granted with the number
of days a particular worker is entitled to.

The percentage of domestic workers granted and employers granting

sick leave differed quite markedly. Again, given the variation in the case of
part-time employment, it is impossible to determine whether workers were
granted the correct number of days of sick leave. Nevertheless, there was
some consistency in the high percentage of workers being paid and
employers paying for sick leave.

In theory, measuring compliance with family responsibility leave and

maternity leave should be easier as the leave entitlement does not vary
according to the number of days worked. Roughly 40 per cent of domestic
workers and employers interviewed by SLP indicated that they had been
180 Chapter 5

granted or had granted family responsibility leave. By contrast, Marais’

micro-study in Emfuleni recorded a much higher rate of 71 per cent.

The SLP’s much lower figures for maternity leave are consistent with
the lower incidence of pregnancy as opposed to other events giving rise to
leave entitlement. Marais’s study does not show what proportion of the
interviewed employers granted maternity leave but reveals that of those
who did grant leave, 67 per cent complied with the requirement to allow
the domestic worker to return to work at least six weeks after childbirth.

The DoL report points to very high levels of compliance with all leave
requirements in the Western Cape. This seems to be at odds with the other
studies. The DoL’s figures are also starkly at odds with the SLP’s finding
that a significant proportion of domestic workers are not granted any form
of leave. These figures cast doubt on the possibility of up to 99 per cent
compliance with all forms of leave.

3.1.6 Assessment of data on basic conditions of employment

As the tables and the discussion in the preceding sub-sections have shown,
there are several challenges in determining levels of compliance even with
a single legal requirement. These include the substantially urban bias of
most of the studies as well as the fairly small sample size and localised
focus of certain of the studies, making it difficult to arrive at generalisations
about the situation of domestic workers throughout the country.

In addition, several of the studies merely aim to document the working

conditions of domestic workers at a given place and time and not
necessarily to determine levels of compliance. As such, these studies do not
lend themselves to a straightforward comparison of stipulated minimal
and actual working conditions. Finally, differences in objectives,
methodology and emphasis between the various studies make it difficult to
compare the data across the studies and over time.

The DoL’s blitz inspection reports are probably the most focused on
measuring compliance and cover a wider range of employer obligations
than the other studies. The blitz reports have the advantages of wide
geographical coverage and comparability of results over time. However,
inspectors’ reports appear to be based solely on employers’ accounts of
their domestic workers’ conditions of employment.83 This makes the very
low levels of non-compliance recorded in the DoL report above
questionable. One could plausibly suggest that these statistics are not
necessarily attributable to a culture of compliance but at least partly to
employers seeking to avoid penalties for non-compliance.

83 S Ally From servants to workers: South African domestic workers and the democratic state
(2010) 91-92.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 181

It would be difficult to capture the state of compliance with basic

working conditions for domestic workers in a single statement, save to
observe that there appears to be significant levels of non-compliance with
certain requirements coupled with, arguably, a gradual trend towards
greater compliance among certain echelons of employers. It is therefore
important to look beyond numbers and interrogate compliance data in
light of the methodology adopted and the parameters within which
compliance statistics are measured.

3.2 Unemployment Insurance Fund deductions

The UIA was enacted to establish the Unemployment Insurance Fund

(UIF) and regulate the payment of benefits to contributing workers during
limited periods of unemployment due to illness, maternity and adoption of
a child. The Act has excluded certain categories of workers from its
inception. While domestic workers were not excluded, its application to
them was suspended for a period of 12 months84 and took effect on 1 April
2003. Following an amendment in 2003 to accommodate the needs of
domestic workers, the Act now allows a domestic worker working for
several employers to claim benefits upon loss of employment with one
employer, even if they continue to work for their other employer(s).85 The
Act also allows a domestic worker to claim unemployment benefits on the
death of her/his employer.86

The Unemployment Insurance Contributions Act 4 of 2002 (UICA)

was enacted to regulate the payment of contributions to the UIF. It
requires an employer of a domestic worker who is employed for more than
24 hours a month to contribute to the UIF on behalf of the worker.87 To
this end the employer must register with the Unemployment Insurance
Commissioner and submit particulars of her/his employees on a monthly
basis.88

Both the UIA and the UICA exclude foreign nationals who are
temporarily resident in South Africa and are employed in South Africa on
a fixed-term basis.89 Thus, since very few domestic workers from other
African countries are likely to have permanent residence status, the
employers of migrant domestic workers may in practice not make
contributions on their behalf. This must be factored into any analysis of
compliance with UIF legislation.

84 UIA, sec 3(2).

85 UIA, sec 12, as amended by sec 4 of the Unemployment Insurance Amendment Act
32 of 2003 (UIAA).
86 UIA, sec 16, as amended by the UIAA, sec 6.
87 UICA, secs 4 and 5.
88 UICA, secs 10(1) and (3).
89 UIA, sec 3(1)(d), and UICA, sec 4(1)(d).
182 Chapter 5

Source Registration with Submission of Deduction of UIF

UI Commissioner monthly reports contributions
Hertz 3% of employers N/A N/A
surveyed in 2001
were registered

25% of employers
surveyed in 2003
were registered
Social Law Project N/A N/A 8.9% of workers
1 indicated that their
contract included
terms on UIF
contributions
Social Law Project 41.8% of N/A N/A
2 employers reported
that they were
registered
Marais 68% employers N/A N/A
reported that they
were registered
DoL 14.9% non- 9.9 % non- 17.4% non-
compliance compliance compliance
recorded. recorded recorded

In theory, measuring compliance with UIF legislation should be a simple

exercise given that the information regarding all registrations, record-
keeping and payment of contributions is kept by the Unemployment
Insurance Commissioner. This assumption has not proven true because of
the questionable nature of the records kept by the Commissioner.90
According to a Department of Labour publication91 646,225 domestic
employees were registered in March 2011.  Given a total number of 877
000 domestic workers at that point,92 this would mean that 73.7 per cent
of those domestic workers were registered for unemployment insurance.
Actual UIF data, however, reflected 323 604 registered domestic
employees as at November 2010, of whom 143 423 had termination dates

90 This concern has been raised by stakeholders and has been acknowledged by the DoL;
eg, at the Labour Parliamentary Portfolio meeting held on 2 August 2011 to discuss
the implications of ILO Convention 189 on Domestic Workers for South African law
and institutions.
91 E Netshifhefhe Job Opportunities and Unemployment in the South African Labour Market
April 2010 – March 2011 (2011) 14: http://www.skillzhub.co.za/files/documents/
DoL_Job_skill_MisMatch_rep2011.pdf (accessed 6 April 2013).
92 Statistics South Africa Quarterly Labour Force Survey: Quarter 1, 2011 (May 2011) Table
D http://www.statssa.gov.za/publications/P0211/P02111stQuarter2011.pdf (access-
ed 6 April 2011).
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 183

and 180 181 were active at that point.93 On this basis, only 20.7 per cent
out of a total of 869 000 domestic workers were registered for
unemployment insurance at the end of 2010.94 The latter figure appears
more realistic in the light of the overall context of the sector.95

A glance at the survey data above indicates an upward trend in UIF

registrations, with the earliest figures showing that some employers
registered with the UIF even before the UIA became applicable to
domestic workers, but confirms the questionable nature of the DoL’s claim
of widespread compliance. The SLP study, for example, reveals that only
8.9 per cent of domestic workers surveyed indicated that their contract of
employment included terms on UIF deductions and 0.2 per cent
highlighted their employer’s payment of UIF deductions as a positive
aspect of their employment. This contrasts sharply with the DoL’s blitz
report in the Western Cape, according to which there was less than 20 per
cent non-compliance with each of the three employer’s obligations relating
to UIF.

3.3 Compliance with other standards

Having considered compliance with the duties placed on employers by the

BCEA, SD 7, UIA and UICA, this section explores compliance with a
broader set of obligations. These can be termed negative obligations in the
sense that they require employers to refrain from certain conduct which
would harm or prejudice the domestic worker. Below we shall look at
obligations relating to child labour, forced labour, unfair discrimination
(including sexual harassment), violence and unfair dismissal. In practice it
is highly likely that many incidents of prohibited conduct go unreported,
thus making it difficult to quantify the extent to which they occur. While
some attempt will be made to engage with quantitative data on these
issues, the main purpose of this section is to provide a more qualitative
analysis of these forms of conduct, the circumstances under which they
occur and their impact on domestic workers.

3.3.1 Child labour and forced labour

South African law defines a child as a person under the age of 18 years.96
Section 28 of the Constitution enshrines the rights of the child, including
the right to be protected from exploitative labour practices.97 Every child
also has the right not to be required or permitted to do work that is

93 Unemployment Insurance Fund database provided by the DoL (unpublished).

94 Statistics SA (n 92 above) Table D.
95 It is possible that the much higher percentage reported by the DoL (above) may
include non-active registrations (employees who are no longer employed) as well as
active registrations.
96 See, eg, sec 28(3) of the Constitution.
97 Constitution, sec 28(1)(e).
184 Chapter 5

inappropriate for his or her age and which prejudices his or her well-being,
education, health or development.98 Importantly, section 28(2)
emphasises that ‘the child’s best interests are of paramount importance in
every matter concerning the child’.

The BCEA gives effect to these constitutional rights in section 43,

which has been incorporated into item 23 of SD 7.99 Item 23(1) prohibits
the employment of a child as a domestic worker if he or she is under the
age of 15 or under the minimum school leaving age. It also prohibits the
employment of children in employment that is inappropriate for their age
or places their well-being, education, health or development at risk. An
employer who employs a child aged between 15 and 18 years must
maintain a record of the child’s name, date of birth and address.100
Employing children in contravention of the prohibition is an offence in
terms of the BCEA and attracts a penalty of three years’ imprisonment.101
More recently, Parliament enacted the Children’s Act102 to regulate a
broad range of matters relating to the child, including provisions on child
labour, child exploitation and the trafficking of children.

The Basic Conditions of Employment Amendment Bill of 2012

proposes the replacement of the term ‘employment’ with the term ‘work’
in sections 43-46 of the BCEA.103 Budlender and Bosch reinforce the
distinction between ‘employment’ and ‘work’ in a broader sense by
defining ‘paid domestic work’ as ‘a worst form of child labour’ which
includes the performance of ‘domestic work for cash, for accommodation
or rations or any combination of these’.104 While it does not cover
children’s performance of domestic chores in their own households for no
reward, excessive chores may be regarded as a form of abuse in terms of
the Children’s Act.105 In practice, however, this distinction may be less
than clear-cut, with research indicating that the difficulties of
distinguishing a domestic worker from a non-worker are compounded in
cases where children are involved.106 Traditional practices such as family
patronage in extended families, characterised as a food for work system or

98 Constitution, sec 28(1)(f).

99 In order to create consistency with the Constitution and the relevant ILO conventions,
this amendment should also be read into item 23 of SD 7.
100 SD 7, clause 23(3).
101 SD 7, clause 23(6), read with secs 46 and 93 of the BCEA. It has been noted (above)
that the Basic Conditions of Employment Amendment Bill of 2012 proposes to
increase the maximum penalty from three to six years’ imprisonment.
102 Children’s Act 38 of 2005.
103 Amendment Bill, clauses 3-6.
104 D Budlender & D Bosch South Africa – Child domestic workers: A national report (2002) ix.
105 Budlender & Bosch (n 104 above) 23. In making this argument they referred to the
Child Care Act 74 of 1993, which was subsequently repealed by the Children’s Act.
106 On Par Development CC ‘Child domestic work: Baseline study’ Research
commissioned by Activists Networking Against the Exploitation of Child Domestic
Workers (2006) (the ANEX Report) 24; Budlender & Bosch (n 104 above) 17.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 185

a child’s duty to assist the family, render the dividing line murky107 and
limit the potential for policy and administrative efforts to detect the
incidence of prohibited child domestic work.108

Forced labour is primarily governed by section 13 of the Constitution

which entrenches the right not to be subjected to slavery, servitude or
forced labour as a fundamental right. Section 48 of the BCEA gives effect
to this right and makes it an offence for any person to ‘cause, demand or
impose forced labour’ for his/her or a third party’s benefit.109 In this part
we discuss both child labour and forced labour because, in many cases,
child labour is a form of forced labour and several of the underlying issues
apply to both. In particular, there is evidence that human trafficking is
increasingly expediting the use of child labour and forced labour in South
Africa’s domestic sector. Worryingly, there is little evidence that the DoL
and other branches of government are focusing on the role of trafficking in
the domestic sector from a policy and administrative perspective. This
means that little has been done to determine the extent of the problem,
identify the root causes and establish policies to assist child and other
domestic workers who are victims of trafficking.

The most widely accepted definition of human trafficking is found in

Article 3 of the UN Protocol to Prevent, Suppress, and Punish Trafficking
in Persons, Especially Women and Children of 2000 (the Palermo
Protocol), which South Africa signed in 2000 and ratified in 2004.110 The
Protocol identifies several key elements, namely ‘recruitment and
facilitated movement of a person within or across national frontiers by
means of coercion, threats or deception for the purpose of exploitation’.111
The ultimate end of human trafficking, exploitation, is defined to include
forced labour, slavery or servitude. The Protocol provides that the consent

107 C Allais et al ‘Tsireledzani: Understanding the dimensions of human trafficking in

Southern Africa’ Research report commissioned by the National Prosecuting
Authority of South Africa (2010) 116-7; Budlender & Bosch (n 104 above) 17.
108 ANEX Report (n 106 above) 24.
109 The penalty for this offence is three years’ imprisonment, which it is proposed to
increase to six years: see n 101 above.
110 Art 3 of the Palermo Protocol provides the following definition of ‘trafficking’:
‘(a) “Trafficking in persons” shall mean the recruitment, transportation, transfer,
harbouring or receipt of persons, by means of the threat or use of force or other forms
of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position
of vulnerability or of the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person, for the purpose of
exploitation. Exploitation shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced labour or services,
slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set
forth in subparagraph (a) of this article shall be irrelevant where any of the means set
forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the
purpose of exploitation shall be considered “trafficking in persons” even if this does
not involve any of the means set forth in subparagraph (a) of this article;
(d) “Child” shall mean any person under eighteen years of age’.
111 Tsireledzani Report (n 107 above) 3.
186 Chapter 5

of the victim is irrelevant where the perpetrator obtains it by means such as

threats, deception and abuse of the victim’s vulnerability. Importantly, the
definition includes any actions facilitating the exploitation of a child,
regardless of whether the perpetrator makes use of the means listed in sub-
paragraph (a) of Article 3.

Research in South Africa highlights the pivotal role played by

‘employment agencies’ in the trafficking of children and women for work
in the domestic sector. Three patterns of recruitment have been identified,
namely direct recruitment by agencies, the contracting of individuals and
taxi drivers to recruit domestic workers in communities, and the operation
of syndicates that recruit, transport and supply domestic workers to
agencies.112 A key strategy is the transportation of victims to unfamiliar
surroundings, as this makes it virtually impossible for them to escape or
seek help and facilitates their exploitation.113

The trafficking of children and women for domestic servitude within

South Africa’s borders is fairly well-documented.114 Typically, women
and girls from poorer provinces such as Mpumalanga, Limpopo and the
Northern Cape, rural areas and informal settlements are recruited for
‘work’ in wealthier provinces and urban centres.115 The Western Cape has
been cited as the hub for ‘a highly organised trade in adolescent girls and
young women for the purposes of domestic servitude’.116 Many are
trafficked from surrounding rural communities because, in the words of a
union representative,

[t]here are enough workers in Cape Town to fulfil the demand. But the
employers prefer rural because it is cheaper, they are more obedient because
of the fear and their families are not around, and their demands are not great -
just a bed and food.117

Less is known about the cross-border trafficking of women and children

into South Africa for domestic servitude. There is some evidence that the
recruitment networks reach neighbouring countries such as Zimbabwe and
Lesotho.118 Women and children have reportedly crossed the border
under the lure of a ‘better life’ and false promises of ‘good’ jobs and better
education in South Africa.119 It is also conceivable that women and
children, having come to South Africa by their own devices to seek work,

112 ANEX Report (n 106 above) 6.

113 Tsireledzani Report (n 107 above) 4; ANEX Report (n 106 above) 6.
114 Budlender & Bosch (n 104 above); Tsireledzani Report (n 112 above); ANEX Report
(n 106 above); LM Bermudez ‘“No Experience Necessary”: The internal trafficking of
persons in South Africa’ Report prepared on behalf of the International Organisation
for Migration (October 2008).
115 Bermudez (n 114 above) 46.
116 Bermudez (n 114 above) 45.
117 Budlender & Bosch (n 104 above) 18.
118 Tsireledzani Report (n 107 above) 116, 138.
119 Tsireledzani Report (n 107 above) 87.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 187

are ensnared into domestic servitude by local recruiters. Victims report that
agents’ promises of a fair monthly wage were not fulfilled and that agents
deducted significant portions of their wages allegedly to recoup the cost of
transport and transit accommodation as well as ‘job placement fees’.120
This traps them into debt bondage for long periods of time. Some workers
report that, after the alleged cost of accommodation and food is deducted
from their salaries, they are paid nothing at the end of the month.121

Most of the children and young women interviewed in the studies have
told of being confined in the home where they work and are prohibited
from leaving the house alone.122 The working hours may exceed 10 hours
per day, with little or no time off on weekends.123 Inevitably, young
children working under these circumstances are denied the opportunity to
attend school. The accommodation provided is typically a small shack at
the back of the house and there is no respect for the worker’s privacy.124
There were reports of verbal, physical and sexual abuse at the hands of
agents or employers.125

A combination of factors is driving the increase in child labour and

forced labour within the domestic sector. The most obvious relate to
poverty, unemployment, lack of education, disempowerment and social
exclusion, which leave many women and children desperate for any
opportunity to earn a living.126 The growing number of AIDS orphans in
South Africa has also contributed to the increasing vulnerability of young
children who must find work to support themselves and their siblings or
other family members.127 But even children who have parents are not
immune, with reports that some parents are instrumental or complicit in
the trafficking of their own children.128

Another factor is economic disparities between regions which make

certain regions appear as attractive destinations to those living in
impoverished communities.129 Reports highlight the desire of trafficked
women and children to seek ‘a better life’ elsewhere:130

In Murraysburg, there is no sustainable employment. There are little to no

prospects past matric and there has been an exodus of qualified people. The
problem here is with the youth. When you finish your matric, what are you

120 ANEX Report (n 106 above) 11.

121 ANEX Report (n 106 above) 47- 48.
122 Bermudez (n 114 above) 49; ANEX Report (n 106 above) 12-14.
123 ANEX Report (n 106 above) 10.
124 ‘Human trafficking in South Africa: Root causes and recommendations’ UNESCO,
Policy Paper Poverty Series No 14.5 (E), Paris, 2007 28; Bermudez (n 114 above) 48.
125 Budlender & Bosch (n 104 above) 18; Bermudez (n 114 above) 48-49.
126 ANEX Report (n 106 above) 23; Tsireledzani Report (n 107 above) 5.
127 UNESCO Report (n 124 above) 35-36; ANEX Report (n 106 above) 5.
128 Tsireledzani Report (n 107 above) vii; ANEX Report (n 106 above) 5; Bermudez (n
114 above) 52 & 56.
129 Tsireledzani Report (n 107 above) 16; Bermudez (n 114 above) 12.
130 Bermudez (n 114 above) 46.
188 Chapter 5

going to do? Unless you work on a farm there is not much employment. This
is why young people want to go to the town.

At the same time, economic disparities fuel a demand for cheap migrant
labour in wealthier regions.131

Recruiters’ and employers’ efforts to conceal trafficking make it

difficult to determine its extent in the domestic sector.132 The most
frequently cited statistics are from Budlender and Bosch’s 2002 report
based on the Survey of Activities of Young People (SAYP), which
concluded that paid domestic workers accounted for 2 per cent of working
children.133 This translated to about 50 000 child domestic workers. The
increasing attention that these abusive practices have been receiving
suggests that their incidence in South Africa is on the rise.

3.3.2 Discrimination, harassment, abuse and unfair dismissal

There is limited quantitative data on the extent to which discrimination,

harassment, abuse and unfair dismissal occur in the domestic sector.134
Qualitative reports such as those relating to human trafficking and forced
labour (above), as well as media reports, suggest that such practices are not
uncommon in the sector. A search of cases instituted in South Africa’s
superior courts, including the Labour Court, did not reveal any cases
instituted by or on behalf of domestic workers. This may be a result of the
prohibitive cost of such proceedings. The extent to which such practices
are reported and remedial action taken against the employers may further
be limited due to fear of further victimisation, lack of awareness as to what
action can be taken, entrapment in the case of trafficked workers, and lack
of documentation in the case of migrant workers. More research is needed
to clarify these questions although, as argued elsewhere in this study,
effective organisation among domestic workers (as discussed in Chapter 7)
and a normative approach to enforcement based on meaningful
engagement are vital elements of any strategy at coming to grips with the
issues.

4 What are the barriers to compliance?

Chapters 3 and 4 (above) have established that South Africa has a

relatively comprehensive regulatory regime for domestic workers, which

131 UNESCO Report (n 124 above) 39; Tsireledzani Report (n 107 above) 137.
132 Most general surveys on the working conditions of domestic workers do not include
questions relating to child labour and forced labour. One exception is the DoL’s blitz
reports (above), which suggest that less than 1% of investigations found evidence of
child and forced labour.
133 Budlender & Bosch (n 104 above) 27-28.
134 Unfair dismissal disputes pursued in the CCMA are discussed in parts 3, 5.2.12 and
7.3 of Chapter 3 above.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 189

has been hailed by the ILO as an ‘innovative’ model for the regulation of
this sector.135 The preceding part of this chapter, however, also established
that the extension of labour rights to domestic workers has been
characterised by a significant degree of non-compliance. This part of the
chapter seeks to analyse the factors that have hindered the implementation
of the rights which the Constitution, labour legislation and SD 7 in
particular promise for domestic workers. In other words, what is
preventing the translation of these rights into a reality for all of South
Africa’s domestic workers?

This inquiry is a complex and multi-dimensional one which will be

considered from a number of perspectives:

• What prevents employers from fulfilling their obligations?

• What prevents domestic workers from vindicating their rights?
• How effective are the regulatory framework and the institutions enforcing
it?
• What is the impact of the lack of effective organisations of domestic
workers?

In reality, these questions are closely inter-related. All four are linked to,
amongst other things, the nation’s history, current socio-economic
realities, legislative design and institutional capacity. Above all, cutting
across all four questions and underpinning all barriers to enforcement is
the fact that domestic work does not fit into the paradigm of the standard
employment relationship that labour law is premised upon. The most
fundamental characteristic of domestic work is its highly individuated,
personal and ‘intimate’ nature:136

[T]he domestic workplace … is a workplace saturated with intimate relations,

and the close, personal, affective dimensions of their employing families’ lives
become intertwined with their work. In every possible way, domestic workers
work within the emotion-laden spaces of family life [makes] their work
intimate. They [wash] underwear, [clean] bed sheets, [overhear] family
arguments, [become] part of family conflicts, and [are] often the first ones to
discover intimate family secrets.

In Chapter 2 the implications of this aspect of domestic for the design of an

effective regulatory framework was considered. Here we are concerned
with its implications from the standpoint of enforcement.

135 See, eg, ILO Decent work for domestic workers IV Report to the International Labour
Conference, 99th session, Geneva (2010) 1 http://www.ilo.org/wcmsp5/groups/
public/@ed_norm/@relconf/documents/meetingdocument/wcms_104700.pdf
(accessed 21 February 2013) para 93.
136 Ally (n 83 above) 97-98 for more detailed discussion.
190 Chapter 5

4.1 What prevents employers from fulfilling their obligations?

4.1.1 Awareness of obligations

There is a dearth of research into the levels of employer’s awareness of

their obligations towards their domestic workers. Marais’s micro-study of
employer compliance in Emfuleni, however, provides some useful insights
into the relationship between an employer’s awareness of their SD 7
obligations and their compliance with them.137

In general, her study revealed that while most employers in the area
were aware of the existence of legislation to protect domestic workers,
most were unaware of the specific provisions of the law. More particularly,
three patterns emerge as to the relationship between awareness and
compliance in Emfuleni which, it is suggested, may be equally applicable
to employers in other areas.

The first pattern was a correlation between levels of awareness and

levels of compliance in respect of certain provisions. This indicated
situations where the employers have the ability and the desire to translate
their awareness of the obligations into compliance, because of their belief
that obeying the legal requirements is ‘the right thing to do’ and/or because
they wish to avoid the repercussions of non-compliance.

The second was a low level of awareness combined with high levels of
compliance in respect of other provisions. This refers to situations where
the course of action taken by the employer reflects their own (uninformed)
perceptions of what would be fair. Arguably, this type of compliance has
little value, as it is merely coincidental and is not informed by an
understanding of what is required by the law.

Thirdly, employers demonstrated a high level of awareness of yet other

provisions, but very low levels of compliance. Several factors could
account for this, including a lack of knowledge as to how to comply (which
institution to approach, which forms to fill in). This factor may be
addressed by the DoL’s blitzes and information campaigns, including
information made available on internet.138 More insidious, however, are
factors such as an under-appreciation of the value of domestic work,
perceptions of the consequences of non-compliance and inadequate
resources to comply. These are discussed in turn below.

137 Marais (n 73 above).

138 See, eg, DoL ‘All about domestic workers’ https://www.labour.gov.za/find-more-
info/all-about-domestic-workers (accessed 21 April 2013).
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 191

4.1.2 Undervaluing domestic work and perception of the domestic

worker as ‘the inferior’

Domestic work has long been undervalued throughout the world. This is
partly due to the perception that it is ‘women’s work’, that it is of little
economic value and is therefore not ‘real work’. In South Africa, this
perception was exacerbated by the racialised nature of relations between
black domestic workers and their white ‘madams’. The patterns of thinking
underlying these relations were deeply entrenched and to a greater or lesser
extent continue to linger post-democracy. With growing black affluence
and the ability of black employers to employ domestic workers, class has
featured more prominently in domestic worker-employer relations.

The result of the complex interplay between gender, race and class is,
in many cases, a perception amongst employers that the domestic worker
is a lesser creature. This is captured in certain expressions used by
employers, such as ‘you cannot compare us to them’, references to
domestic workers as ‘these people’, and in observations by domestic
workers themselves such as ‘they do not see me as a human being like
them’ and ‘they treat their animals better than me‘.139 Under these
circumstances, employers are unlikely to respect the dignity of the
domestic worker or take seriously their rights as workers.

The employer’s propensity to distance herself or himself from the

domestic worker eliminates the empathy which might otherwise have led
them to respect the worker as an equal. The social distance between the
employer and the worker also prevents the employer from appreciating the
value of compliance. Rather, it encourages employers to seek workers who
are willing to accept employment on any terms. In many cases such
workers may be children, undocumented migrants or otherwise more
vulnerable.

4.1.3 Perceptions of the consequences of non-compliance

According to the rationalist theory of compliance, a person’s decision to

comply with rules is informed by an analysis of the costs and benefits of
compliance. People will therefore comply with legislation if they perceive
the costs of non-compliance to outweigh the benefits thereof. This means
that an employer may not comply if he or she is unaware of the
consequences of non-compliance or, if knowing those consequences,
perceives them to be less than the benefits of compliance.

139 Comments by participants in focus groups and workshops of domestic workers held by
the Domestic Workers Research Project (DWRP) in Cape Town, Johannesburg and
Durban between July 2009 and 2012. On the activities of DWRP see www.dwrp.org.za
(accessed 21 April 2013).
192 Chapter 5

But, even if employers perceive the technical costs of non-compliance

to be higher than the costs of compliance, they may nevertheless choose
not to comply if they believe that the chances of being punished for non-
compliance are very low. This may be due to an assumption of the low
chances of detection given the ‘hidden’ nature of domestic work or
perceptions of the poor enforcement mechanisms or the possibility of
avoiding detection. The latter may extend to extreme measures such as the
confinement of domestic workers to prevent them from reporting abuse to
friends, family and/or authorities.

4.1.4 Inadequate resources to comply

In a context of high levels of income inequality, not all people who employ
domestic workers will always have the necessary resources to comply with
statutory requirements. Research indicates that demand for domestic
services is price-sensitive, with employers resisting the employment of
domestic workers above a certain cost.140

SD 7 tries to address the issue of affordability through the

establishment of differential wage rates in urban and rural areas and
allowing employers to give time off in lieu of premium rates of payment.
Employers, however, may navigate issues of affordability through
‘negotiations’ with domestic workers and, if no agreement is reached,
seeking a domestic worker who is willing to accept the amount offered.
The quotations below (captured by Budlender) illustrate employers’
approaches to the affordability of domestic service:141

[I]t depends on the type of household she works for. Some homes have a
mother, father and kids and others just have two people. If there are two
people, I don’t think you have to pay that R1 500, do you understand?
Because the workload from the two households will not be the same. Same as
the area, the houses herein the township might be three bedrooms and a
house in Sandton might have five. In Sandton she’ll get that R1 500. In your
house it might just be you and your child and it’s a small house. Most times
you agree on salary between the two of you. You let her know what you can
afford. (Gauteng employer)
When I hire someone I tell them that I can afford so much. It’s up to her to
agree. If she doesn’t agree, she doesn’t have to stay. (Gauteng employer)
She told me that she will give me R850 and she later told me that she does not
have R850 but R700. (Ginsberg worker)

140 T Hertz ‘The effect of minimum wages on the employment and earnings of South
Africa’s domestic service workers’ Development Policy Research Unit (DPRU),
Working Paper 05/99, October 2005.
141 D Budlender ‘Decent work for domestic workers’ Research commissioned by the
Services Sectoral Education and Training Authority (May 2010) 24.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 193

4.2 What prevents domestic workers from vindicating their

rights?

4.2.1 Awareness of rights

Awareness on the part of the domestic worker of his or her rights as well
as the means by which to assert those rights may be seen as a self-evident
part of creating a culture of compliance. Domestic workers who are
informed of their rights and know how to defend them, it is assumed, are
more likely to take action to address an employer’s non-compliance, either
by direct engagement, a third party (friend, trade union) or regulatory
institution (CCMA, Department of Labour or police). However, as in the
case of employers, little research has been done into domestic workers’
awareness of their rights and avenues for recourse against the employer.

The SLP survey cited above142 indicates a significantly higher level of

awareness of the legislation protecting domestic workers (65.3 per cent)
and of specific domestic workers’ rights (56 per cent) amongst the
unionised workers and lower levels of awareness amongst non-unionised
workers (19.7 per cent and 28.1 per cent respectively). The reality,
however, is that the vast majority of domestic workers are non-unionised.
Budlender’s recent report confirms that, while there is widespread
knowledge amongst domestic workers of the existence of laws that protect
them, they have limited knowledge of the detailed provisions and in some
cases their information regarding particular issues is incorrect.143

As will be shown below, however, awareness on the part of domestic

workers is not sufficient to ensure that they will take action to correct non-
compliance by the employer.

4.2.2 Fear of victimisation and loss of employment

A number of reports indicate that domestic workers who experience

unfavourable working conditions may be afraid to assert their rights or to
resign from their employment due to fear of victimisation by the employer.
Child domestic workers, in particular, are ‘reluctant to come forward
because of the extent of their vulnerability and fear of the repercussions
they could face – emotional, physical and economic’.144 But adult
domestic workers are also vulnerable to victimisation that may result from
an attempt to assert their rights against their employer.

142 See (n 71 above).

143 Budlender (n 141 above) 64-65.
144 ANEX Report (n 106 above) 6.
194 Chapter 5

Fear of dismissal is a critical factor in this context. In a country such as

South Africa, where unemployment is high and jobs are hard to find, many
domestic workers are afraid to take action or resign for fear that they would
not be able to find alternative work if they left their present employment.
Thus, even though the DoL has received numerous phone calls from
domestic workers reporting physical and sexual abuse, workers have
declined offers of assistance for fear of losing their income and their
jobs.145 A group of workers in the Eastern Cape expressed the following
view:146

I just keep quiet because I do not know what else I can do. We are scared of
losing our jobs. We are also destitute and we do not know where to get other
jobs because when you are going for these hearings the employer stops you
from working. (Zwelitsha workers)

The prospect of losing one’s employment is even more daunting where the
domestic worker is the sole breadwinner and their children, parents and/
or extended families are dependent on the income from the job. In many
cases, this leaves the domestic worker trapped in a cycle of exploitation
and abuse.

4.2.3 The vulnerability of migrant domestic workers

Migrant domestic workers deserve special attention as they are particularly

vulnerable to exploitation. South Africa has seen a large influx of migrants
from countries such as Zimbabwe, Malawi, Lesotho, Swaziland and the
Democratic Republic of Congo over recent years. Depending on their
country of origin and their individual circumstances, some migrants are
able to enter and stay in South Africa legally under a work permit or as
refugees. However, a substantial proportion is undocumented.

Lack of documentation, language barriers and the non-recognition of

foreign qualifications and experience force many migrants, including
professionally qualified persons, into domestic work. In the absence of
viable alternatives, social security coverage or a family support structure,
many migrant domestic workers find themselves compelled to accept
employment with unscrupulous employers under unacceptable
conditions.147 Because of their fear of detection and deportation by the
authorities, such workers are unlikely to seek redress. In the words of an
undocumented worker from Lesotho:148

Some of them take advantage of the fact that a lot of domestic workers don’t
have IDs because some are foreign. Even you say you’re going to report them,

145 Bermudez (n 114 above) 58-59.

146 Budlender (n 141 above) 55.
147 Tsireledzani Report (n 107 above) 98.
148 Budlender (n 141 above) 56.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 195

they remind you that you don’t have an ID so there’s not much you can do …
Some will tell you that they will get you arrested because you’re a foreigner,
you’re from Lesotho. When you think of going back to a life of poverty you
reconsider reporting them. Also if you get fired, where are you going to get
another job? (Linville worker)

The Labour Court has ruled on the rights of undocumented migrants to

enforce certain of their labour rights. In Discovery Health Limited v
Commission for Conciliation, Mediation and Arbitration & Others149 the court
highlighted the injustices that could flow from a finding that employment
contracts concluded with undocumented migrants are null and void and
that such workers are consequently excluded from the protection afforded
to ‘employees’.150 Noting that the Immigration Act151 imposes a criminal
sanction on an employer who employs an undocumented migrant but does
not proscribe the conclusion of such a contract, Van Niekerk J concluded
that the legislature could not have intended to render such a contract
invalid.152 It was therefore held that an employment contract with an
undocumented migrant may be valid and that the latter may be an
‘employee’ as envisaged in the LRA.153

Despite this, the reality is that officials who become aware of a migrant
worker’s undocumented status are under a duty to report that worker to the
Department of Home Affairs, thereby setting in motion his or her
deportation.154 Not surprisingly, many undocumented migrant workers
who do approach the authorities for protection report that officials are
unsympathetic and do not assist them.155 To this extent the rights of
undocumented migrant workers may be described as a dead letter. Their
plight is considered in greater detail in Chapter 5.

4.2.4 Lack of effective worker organisations

Worker organisations, and trade union organisations in particular, has

long served as a key countervailing force against the superior economic
power of employers as well as a means of monitoring and compelling

149 [2008] 7 BLLR 633 (LC).

150 Para 30.
151 Immigration Act 13 of 2002. See sec 38(1) read with sec 49(3).
152 Para 32.
153 Para 32. The court also found that, even if the contract were invalid, an undocumented
migrant may nevertheless be an employee as defined by sec 213 of the LRA because
that definition does not depend on the existence a valid contract of employment: para
49. See also Kylie v Commission for Conciliation, Mediation and Arbitration & Others [2010]
7 BLLR 705 (LAC).
154 Sec 44 of the Immigration Act provides that ‘[w]hen possible, any organ of state shall
endeavour to ascertain the status or citizenship of the persons receiving its services and
shall report to the Director-General any illegal foreigner, or any person whose status or
citizenship could not be ascertained, provided that such requirement shall not prevent
the rendering of services to which illegal foreigners and foreigners are entitled under
the Constitution or any law’.
155 Tsireledzani Report (n 107 above) 98.
196 Chapter 5

compliance with legal requirements. In South Africa trade unions have a

long history, also in the domestic sector, dating back to the Industrial and
Commercial Workers’ Union in the 1920s. At the same time the private
and intimate nature of domestic employment has always presented major
obstacles to trade union organisations in its conventional, industrial forms.
These problems, and possible means of addressing them, are dealt with
more fully in Chapter 7. The present reality, however, is that the weakness
of worker organisations in the domestic sector has weakened collective
efforts to ensure compliance with labour legislation.

4.3 How effective are the regulatory framework and the

institutions enforcing it?

A number of criticisms can be levelled against the state’s regulatory and

enforcement framework for domestic worker protection. These are
organised under three broad headings. The first relates to the capacity of
the labour inspectorate to monitor non-standard forms of employment
and, in the case of domestic workers, the limitation on an inspector’s
power of entry into a private home. The second criticism relates to the
assumption that the domestic sector is a sector ‘like any other’ and,
although special provision has been made in setting minimum wages for
domestic workers, very little has been done to adapt the measures designed
to enforce the law. Finally, it has been argued that in the process of
extending labour rights to domestic workers, the state has consciously or
unconsciously assumed the role of ‘protector’ of domestic workers’ rights
and, in doing so, undermined the role of domestic workers themselves –
individually and collectively – in the enforcement of their rights.

4.3.1 ‘The usual suspects’: limits on the numbers and powers of the
labour inspectorate

One of the key challenges that have been identified for the inspectorate is
its limited personnel. The number of inspectors has increased in recent
years156 but, measured against the total number of workplaces requiring
inspection in order to monitor compliance with numerous labour statutes
and sectoral determinations, the number is insignificant.157 The challenge
is aggravated by a high turnover in the inspectorate and difficulties in

156 According to Benjamin there was an increase from 685 inspectors in 2000 to 1 163 in
2010: P Benjamin ‘Enforcement and sanctions to promote compliance with South
African labour legislation’ (2011) 32 Industrial Law Journal 805 807. According to a
written response by the Minister of Labour, the number rose from 820 in 2009/10 to
990 in 2010/2011 and 1 018 in 2011/2012. The Department was at that point planning
to create a further 120 posts: Response to Parliamentary Question no 882, 12 May
2012.
157 According to a study carried out in 2000, the 334 inspectors stationed in Cape Town,
Durban, East London and Kimberley were responsible for inspecting approximately
120 884 workplaces employing a total of 2 453 859 workers (an average of 361
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 197

attracting and retaining suitably qualified inspectors. In addition, the DoL

has admitted to inadequate information systems and poor record-keeping
on inspections and compliance.158 The accuracy of the data is further
compromised by inconsistencies in the inspection procedures across the
provinces.159 Thus, while statistics show over 70 per cent of complaints
resolved and compliance within 90 days of interventions by labour
inspectors, the reliability of these figures is doubtful.160

In 2012, the Ministry of Labour indicated that it was in the process of

filling vacant posts in the labour inspectorate and acquiring vehicles,
laptops and cellular phones for labour inspectors to enable them to more
effectively carry out their mandate.161 There is no doubt that, if fully
implemented, these measures would go some way towards shoring up the
inspectorate’s capacity to perform its function. However, given the vast
disproportion between the numbers even of a fully staffed inspectorate and
the number of workplaces noted above – to which must be added in excess
of a million workplaces in the domestic sector162 – it becomes evident that
labour inspectors can only perform a reactive function by responding to
complaints in a climate of general compliance. Certainly, it cannot serve
as a primary means of enforcing the rights of domestic workers in a climate
of widespread non-compliance.

Another much-debated issue relating to the powers of the labour

inspectorate concerns the tension between the employer’s right to the
privacy of his or her home and the domestic workers’ rights. Section 65 of
the BCEA, as we have seen, limits a labour inspector’s powers of entry in
the case of a private home by requiring that the inspector have either the
consent of the owner or occupier of the home or a Labour Court order
authorising entry,163 a restriction which is sanctioned by ILO Convention
189.164

157 workplaces employing 7 347 workers per inspector) excluding the domestic and farm
sectors: H Cheadle & M Clarke National studies on workers protection – Country study:
South Africa ILO (2000) 29. Countrywide, the 685 inspectors at the time were
responsible for inspecting workplaces employing 9 654 258 workers, which translates
to over 14 000 workers per inspector excluding the domestic and farm sectors: n 157
above.
158 Benjamin (n 156 above) 809. Although the DoL compiles data on the number of
different compliance instruments (undertakings, compliance orders, prohibitions)
issued by labour inspectors, it does not measure the efficacy of each category in
securing employers’ compliance, making it difficult to determine the efficacy of the
Department’s enforcement activities: Benjamin (n 156 above) 812-813.
159 Benjamin (n 156 above) 809.
160 Benjamin (n 156 above) 810-811.
161 See Minutes of the Department of Labour briefing on Labour Inspectorate high staff
turnover (19 September 2012) http://www.pmg.org.za/report/20120919-department-
labour-inspection-enforcement-servicesspecific-focus-prop (accessed 21 April 2013).
162 Although the total number of workplaces is impossible to determine, the fact that
possibly a majority of employers employ domestic workers on a part-time basis
indicates that the number of workplaces is likely to exceed the total number of
domestic workers by an equally considerable margin.
163 BCEA, sec 65(2).
164 See parts 2.2 and 2.3.1 (above).
198 Chapter 5

There is a strong belief among trade unionists that these limitations

serve to inhibit inspectors’ performance of their duties and facilitate the
concealment of violations of domestic workers’ rights.165 In fact, there is
little evidence of this. DoL inspection reports do not mention employer
resistance as a significant barrier to gaining access to homes. On the
contrary, reports suggest that most domestic employers approached for
‘blitz’ inspections were ‘eager to meet the inspectors and … co-
operative’.166

In addition, serious violations of the BCEA such as forced labour and

child labour are criminal offences which must be dealt with by the South
African Police Service in terms of the Criminal Procedure Act.167 While in
principle a police officer may not enter and search premises (which may
include a private home) without a search warrant or the consent of the
occupier, exceptions may be made in cases where the officer has
reasonable grounds to believe that:168

• an offence has been or is being or is likely to be committed on the

premises;
• a warrant will be issued if applied for; and
• the delay in obtaining the search warrant would defeat the purpose thereof.

From a constitutional standpoint it may be questioned whether it is

permissible to give the labour inspectorate similar or greater powers in
cases where non-compliance with a basic condition of employment is
suspected.169 But even if it were, as noted above, the vast disparity between
the thinly-spread resources of the inspectorate and the number of domestic
workplaces renders the question largely academic in relation to the
effective enforcement of domestic workers’ rights.

4.3.2 Treating the domestic sector as ‘a sector like any other’

The application of the LRA, the BCEA, the UIA and the EEA in the
domestic sector must be seen as a positive development that has undone
the previous regime’s marginalisation of the sector. But, as we have seen,
it is dangerous to assume that recognising and treating it like any other
sector will translate into meaningful change for domestic workers.

165 This point was made strongly by trade unionists at the COSATU/SADSAWU
Planning Committee Meeting relating to the Domestic Workers Convention, held in
Johannesburg on 23-24 May 2011, which the author attended.
166 See DoL Report on the Domestic Blitz conducted from 6-8 April 2009 in the Western Cape and
DOL Report (n 44 above). Finding times when both the working employer and the
domestic worker could be present was said to be the biggest obstacle.
167 Criminal Procedure Act 51 of 1977 (CPA).
168 CPA (n 167 above) sec 25.
169 See sec 36(1) of the Constitution, setting out the criteria for testing the validity of a
limitation of a basic right (in this case the right to privacy).
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 199

Legal regulation of the domestic sector proceeds from an

understanding of the employment relationship as one that is voluntarily
entered into between two individuals, the employer and the employee.
Little attention has been paid to the role played by employment agencies
and the incidence of child and forced labour in the sector.

The role of employment agencies in placing domestic workers has a

long history in South Africa, dating back to government registry offices
during the colonial era.170 In recent years, private employment agencies
have been increasingly involved in the placement of domestic workers in
private homes. These agencies range from large establishments that have
several branches or franchises across the country, to small one-person
offices operating from the owner-manager’s home.171

Employment agencies play two roles in the domestic sector. In the first
instance they may operate as temporary employment agencies (TESs, also
known as ‘labour brokers’) in terms of section 198 of the LRA and section
82 of the BCEA.172 These agencies typically provide domestic workers on
a part-time basis to a household for one or a more days per week,
commonly referred to as a ‘char service’.173 In this case, the agency is the
domestic worker’s employer, unless the domestic worker is an independent
contractor, and pays the domestic worker for providing a service to the
client.174 Alternatively, the agency may facilitate the conclusion of an
employment contract between the domestic worker and an employer.175
In this case, the employer will pay the agency a placement fee and will be
responsible for all obligations in relation to the worker.176

Current labour legislation does not require employment agencies to

register with the Department for the purposes of monitoring their
compliance with their statutory obligations.177 Furthermore, employment
agencies are not mentioned in the available DoL blitz reports, which only
refer to interviews with individual employers in their homes.178 The
exclusion of a constituency that employs many workers to service their
clients and/or plays an important role in the conclusion of employment
contracts between the parties is worrying, particularly if one considers the

170 Ally (n 83 above) 24-42.

171 Information gathered from telephonic interviews with 12 domestic workers’ agencies
conducted in March 2011.
172 See also the discussion in part 5.2.13 of Chapter 2 (above).
173 See ‘Marvellous Maids’ website: www.marvellousmaids.co.za (accessed 12 March
2011).
174 Marvellous Maids’ website (n 173 above).
175 As above.
176 As above.
177 They may, however, be registered under the Services Sectoral Education and Training
Authority (SSETA) for skills development-related matters.
178 A DoL official in the Western Cape indicated that employment agencies were not a
priority for the inspectorate as the Department had interacted with them and found
them to be ‘quite co-operative’: personal communication at meeting held in August
2011 at the Department’s Cape Town offices.
200 Chapter 5

role of some ‘agencies’ in facilitating child and forced labour, as discussed

above, and the grey area separating such criminal organisations from
legitimate enterprises. The lack of attention paid to these agencies at a
policy and administrative level creates the impression that they are beyond
the reach of the law and can act with impunity.179

Despite growing evidence of its prevalence in the domestic sector, the

Department also does not appear to have prioritised child labour and
forced labour as key areas for investigation. This could be attributed to lack
of awareness, lack of political will and/or lack of capacity to implement
appropriate programmes.180 The following quote from the ANEX Report
on child labour is arguably equally relevant to forced labour in the
domestic sector:181

The lack of awareness [of government officials] was evident from their low
levels of information regarding this issue; with many posing questions around
incidence rate[s], areas of prevalence and who exactly deals with such
matters. The implications of this lack of awareness are that the issue of child
domestic work is not prioritised within these government departments.
However, even when a departmental official had knowledge of the problem of
child domestic work, it was still apparent that the department which the
official represented did not prioritise this issue. The absence of formal
protocols, lack of mechanisms and systems to identify and record cases of
child domestic work, failure to allocate funds and insufficient human
resources to address the problem of child domestic work are all indicative of
departments not prioritising the issue. Thus, not only is there a lack of
awareness of this problem among departmental officials but when confronted
with the issue of child domestic work, these key departments have no effective
strategies to respond.

This lack of attention to these practices further entrenches their invisibility

in a sector where work takes place in the hidden sphere of the home.182

At the same time, the Department can be credited for engaging with
non-governmental stakeholders such as research institutions, trade unions
and civil society organisations. It has invited them to make inputs at,
amongst others, the Parliamentary Portfolio Committee on labour and
blitz inspection preparatory meetings. In the Western Cape it has
developed a Domestic Workers’ Forum to engage the stakeholders on
various issues, particularly enforcement and compliance. To an extent this
forum has begun to serve as a platform for the exchange of information and
ideas to enrich the Department’s efforts to secure compliance with the
legislation. Unfortunately, some of the meetings are poorly attended and

179 ANEX Report (n 106 above) 24.

180 ANEX Report (n 106 above) 6.
181 ANEX Report (n 106 above) 23.
182 ANEX Report (n 106 above) 6.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 201

the forum has still to realise its full potential in assisting to maximise the
effectiveness of the Department’s functions.

Research shows that there is room to build more effective synergies

with other governmental bodies and to harness the potential contribution
they could make to the enforcement of domestic workers’ rights. These
bodies include the South African Police Service, the Department of Justice
and the National Prosecuting Authority, which play a critical role in
ensuring the speedy prosecution of criminal offences identified by labour
inspectors.183

5 Moving from a rationalist approach towards

building a culture of compliance

The above discussion highlights some critical shortcomings in the state

machinery for the enforcement of domestic workers’ rights. A number of
these stem from underlying assumptions that existing enforcement
mechanisms, which were designed to protect workers in standard
employment, are equally appropriate in the domestic sector and that
domestic workers are passive victims of exploitation who are in need of
protection. In addition, the existing enforcement machinery reflects the
rationalist approach of using the threat of penalties to induce employers to
comply with their legislative obligations.

It has been noted that a normative approach to enforcement, based on

meaningful engagement between key actors, offers an alternative and
possibly more appropriate means of steering domestic employers and
workers towards a culture of compliance.184 It has also been noted,
however, that the Basic Conditions of Employment Amendment Bill
published in April 2012 makes it clear that such a shift is not on the policy-
makers’ agenda. On the contrary, the Bill provides for the doubling of the
maximum period of imprisonment for offences relating to child labour and
forced labour185 and increases the maximum fines for non-compliance
with minimum conditions of employment by 200 per cent.186 Evidently,
the thinking behind these proposed changes is that the graver the penalties,
the greater the incentive to comply.

The need for deterrence-based forms of enforcement in any legal

system cannot be denied. However, we argue that deterrence-based
mechanisms should not be the primary means of promoting compliance.
Instead, the system for enforcing domestic workers’ rights should cultivate
a culture where employers recognise the legitimacy of labour legislation

183 Benjamin (n 156 above) 18; ANEX Report (n 106 above) 18.
184 See part 2.1 (above).
185 Amendment Bill, clauses 16 & 17.
186 Schedule 2 to the Bill; see discussion in part 2.3.2 (above).
202 Chapter 5

and are willing to comply. Thus, the focus should be on promoting

employers’ and workers’ participation in the regulatory process, combined
with incentives for compliance and building the capacity of domestic
workers to monitor and promote compliance. In pursuing these objectives,
it is argued that the enforcement framework should be adapted to address
the barriers to compliance that were noted above.187

5.1 Raising awareness of domestic workers’ rights and

employers’ obligations

One of the key prerequisites for compliance is awareness on the part of

both employers and domestic workers of their rights, obligations and
remedies. As Marais argues, ‘awareness from both sides is a prerequisite
for effective implementation’ and ‘awareness [can] empower all role
players in the domestic worker sector to ultimately align actions with
legislative stipulations’.188

Discussions with DoL officials in Cape Town indicated that the

Department’s efforts to raise awareness in the domestic sector were largely
confined to the few weeks during a year when domestic sector ‘blitz’
inspections were undertaken.189 The research findings referred to above
suggests that more is needed to make domestic workers and employers
fully aware of their rights and obligations. It is not proposed to make
detailed proposals as to forms of publicity campaigns that may be both
feasible and effective, save to suggest that previous awareness-raising
initiatives by DoL could be developed further and that current information
technology and marketing science offer additional possibilities that deserve
to be considered.

For instance, the distribution of information leaflets together with

local government utility bills provides an extensive-coverage and relatively
low-cost option. DoL officials have indicated that it used this strategy to
spread awareness about employer’s UIF obligations in the wake of the
UIA’s extension to cover domestic workers, but ceased to do so
thereafter.190 Meetings with community members in specific localities,
such as ratepayers’ associations, could also be used as a platform from
which to raise awareness about domestic workers’ rights amongst
employers.191 Certain of the organisational and institutional developments

187 See discussion in part 4 (above).

188 Marais (n 73 above) 67.
189 Communicated by DoL officials at a Domestic Workers’ Forum meeting held in Cape
Town on 22 August 2011.
190 DoL officials (n 189 above).
191 Another possibility is to display information and make available leaflets for
distribution at shopping malls and other places frequented by employers and workers:
Minutes of Domestic Workers Forum meeting, Cape Town, 21 September 2012.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 203

suggested below may also be utilised to raise awareness amongst workers

and employers.

5.2 Providing incentives for compliance

Internationally there has been a shift in recent years from deterrence-based

measures for promoting compliance with legislation towards the inclusion
of supportive and incentive-based measures. An association such as the
Ethical Trade Initiative, for example, encourages producers of consumer
goods in developing countries to comply with international labour norms
in order to gain access to lucrative markets.192 Similarly, it has been noted
that tax incentives are available to employers in Brazil who register their
domestic workers with the national social security system and pay
contributions for those workers.193 In Europe, jurisdictions such as France
and Belgium have adopted cheque or voucher systems that enable
employers (individuals or agencies) to pay domestic workers their salary as
well as their contributions to social security funds.194 Participation in these
schemes entails compliance with a standard employment contract,
including paying minimum wages determined by legislation or collective
agreement.195 In addition to the convenience of paying workers and
making social security contributions, employers benefit from a range of
incentives including tax reductions, tax credits and, in the case of Belgium,
state subsidies for domestic services.196

In South Africa little has been done in this regard. The DoL provides
basic information and forms online for employers and workers to comply
with the legislation, including UIF registration,197 but has not yet devised
a system to simplify payments or offer tax incentives and subsidies for
domestic work. A private firm called Emergence Growth Service (EGS)
has established a web-based package for employers of domestic workers
who wish to comply with their legal obligations.198 It provides a payroll
service, payslip printing and history and links and information on UIF
compliance,199 as well as online support and updates on changes to

192 The ETI describes itself as an ‘alliance of companies, trade unions and voluntary
organisations’ promoting ‘best practice’ in terms of which ‘retailers, brands and their
suppliers take responsibility for improving the working conditions of the people who
make the products they sell’: www.ethicaltrading.org (accessed 24 April 2013).
193 See part 2.3.2.2 of Chapter 4 (above), where it is noted that this scheme has led to an
increase only 1% in the registration of domestic workers by employers compared with
a government target of 20%, indicating that more work is needed to develop a
successful tax incentive model.
194 M Tomei ‘Decent work for domestic workers: Reflections on recent approaches to
tackle informality’ (2011) 23 Canadian Journal of Women and the Law 186 192-200.
195 As above.
196 As above.
197 These are available on the Department’s website: https://www.labour.gov.za/find-
more-info/all-about-domestic-workers (accessed 24 April 2013).
198 From the Domestere website: http://domestere.co.za/domestere.html (accessed 29
October 2012). The current fee for the package is R80 per month.
199 See Domestere website (n 198 above).
204 Chapter 5

legislation.200 In addition, EGS has partnered with a private insurance

company to provide an insurance package which includes personal
accident cover, accidental death cover, permanent total disability cover,
income protection, and a funeral benefit.201

It is submitted that it is anomalous for government to leave it to private

sector entrepreneurs to provide tools for legislative compliance by
domestic employers and that it is incumbent on the DoL to expand the
infrastructural support base that is available to employers as well as to
engage with role-players to identify appropriate incentives that would
encourage more widespread compliance by employers. Positive outcomes
associated with compliance would do much to address negative
perceptions amongst employers of the pros and cons of compliance.

5.3 Empowering domestic workers through training,

recognition of skills and professionalising the industry

Article 25 of ILO Recommendation 201 recommends that member states

and employer and worker organisations establish policies and programmes
for literacy and skills training of domestic workers. This is the first, and an
essential, measure towards fostering the professionalisation of domestic
work and enabling domestic workers to enhance their career prospects
both within and outside the domestic sector. At the same time, enhanced
skills and employment opportunities are critical in empowering domestic
workers, reducing the inequality between worker and employer and
challenging the perception of the domestic worker as a ‘lesser being’.

The Kha Re Gude (‘Let us learn’) Mass Education Campaign

developed by the Department of Basic Education may be seen as a step in
this direction. The purpose is to enable adult learners ‘to read, write and
calculate in their mother tongue in line with the Unit Standards for
ABET202 level 1, and also to learn spoken English’.203 The project, which
was established in 2008, is designed to be flexible to accommodate
working learners through weekend and night classes, and training is
provided in all official languages and is accessible to learners with
disabilities.204 ABET programmes may be offered through private training
providers, which often cater for employers who wish to provide basic

200 As above.
201 As above.
202 Adult Basic Education and Training (ABET)
203 SA Government Information ‘Kha Ri Gude scoops Kamoso award’ (Press release
issued by Department of Basic Education, 17 August 2012). The programme includes
‘life skills such as health, gender, the environment and civic education’. The target is to
enable 4.7 million adults to become literate by 2015. In 2009, eg, a total of 613 637
learners participated in the programme: Department of Basic Education http://
www.kharigude.co.za (accessed 18 April 2013).
204 Department of Basic Education (n 203 above). Materials are available in Braille in all
eleven languages and for use by the deaf: SA Government Information (n 203 above).
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 205

training for their employees.205 In addition, individuals may access ABET

through the Kha Re Gude campaign which provides training to groups in
local communities free of charge.206

At the level of professional skills development, the first initiative

undertaken by government was a three-year Domestic Workers’ Skills
Development Project implemented between 2002 and 2005.207 Valuable
lessons are to be learnt from this project.208 In 2012 a further initiative was
launched in the form of a General Education and Training Certificate:
Domestic Services being accredited by the South African Qualifications
Authority,209 which is currently being offered by a number of private
training institutions.210 The qualification has the following objectives:211

• Raising the self-esteem, personal growth and income of domestic workers

• Creating new learning and career paths and progression opportunities for
domestic workers, either as employees or through starting their own
businesses
• Improving the support systems available to employers in their households
• Achieving recognition for the contribution of domestic services to the
economy
• Improving domestic services within homes and communities
• Formalising the domestic services industry
• Increasing employment opportunities for the unemployed and new
entrants into the labour market.

If these objectives are achieved, it will go a long way towards redressing the
power imbalance between domestic workers and employers and
promoting the realisation of domestic workers’ rights.

205 See, eg, ABET training offered by Triple E Training Holdings: http://www.eee.co.za/
abet.php (accessed 24 April 2013).
206 Department of Basic Education (n 203 above). ABET programmes are also offered by
some public institutions, such as schools, as a community outreach service; see, eg,
Kloof High School http://wikipedia.org/wiki/Kloof-High-School (accessed 18 April
2013).
207 Department of Labour Design of new training plan for domestic workers http://
www.info.gov.za/ speeches/2000/000824410p1003.htm (accessed 24 April 2013).
208 For detailed analysis of the Project and its outcomes, see TS Wessels ‘The development
impact of the domestic workers skills development project on its participants’ MA
thesis, University of South Africa, December 2006 http://uir.unisa.ac.za/handle/
10500/1720 (accessed 14 April 2010).
209 See South African Qualifications Authority (SAQA) ‘Registered Qualification: GETC:
Domestic Services’ http://regqs.saqa.org.za/showQualification.php?id=23853
(accessed 24 April 2013). The qualification was introduced in response to proposals
contained in the CASE report Results of the survey on domestic workers and employers
commissioned by Department of Labour and German Technical Co-operation (2001).
210 Eg, Siyaya Skills Institute http://www.siyayaskills.co.za/index.php?option=com_
trainingbooking&c=training and Africa Skills Village http://showme.co.za/george/
files/2012/07/Domestic-Services-Level-1-2011.pdf (both accessed 24 April 2013).
211 South African Qualifications Authority (n 209 above).
206 Chapter 5

In addition, a number of training programmes are available in the

domestic sector, for the most part provided by private firms that also offer
recruitment services. From the range of training courses provided by these
firms, it appears that there is a trajectory from foundation courses to more
highly skilled functions such as laundry work, nannies, au pairs and
housekeepers, although the competencies in each category differ across
training institutions.212 In this classification, ‘domestic workers’ occupy
the lowest rung of the ladder and training is aimed at basic tasks such as
cleaning, ironing and bed-making; in some cases additional training may
be provided in basic cooking and serving. Nannies are trained in matters
relating to the care of small children, including safety, hygiene and
nutrition.213 Au pairs and housekeepers at the upper end of the spectrum
are expected to manage the household and have knowledge of matters
such as first aid, child development, homework management and food
management. It is interesting to note that most of the literature and
websites of these firms use pictures of white children, indicating that their
services mainly target white families.214

In addition to accredited and non-accredited training, it has been

argued that there should be scope for the recognition of the experience and
skills of domestic workers who have no formal training but have worked in
the sector for a period of time.215 Generic skills development should
furthermore create linkages between domestic work and other sectors to
allow mobility into other occupations such as catering, hospitality, child
care and elderly and frail care.

Once established, occupational categories could be used as the basis

for establishing wage differentials in minimum wages. This would
recognise and reward those workers who have gained additional skills,
qualifications and experience during their career as domestic workers.216
It has been argued that SD 7 should be revised to take account of the

212 See, eg, Marvellous Maids ‘Training’ http://www.marvellousmaids.co.za/

index.php?option=com _content&view=article&id=17&Itemid=52 (accessed 24 April
2013); Nanny Maids & Nurses ‘Frequently asked questions’ http://www.nanny
maids.co.za/faq.html (accessed 22 April 2013).
213 Cf Nanny Maids & Nurses ‘Training’ http://www.nannymaids.co.za/training.html
(accessed 22 April 2013).
214 On employment relations between black domestic workers and black employers, see
XP Dilata ‘Between “sisters”: A study of the employment relationship between
African domestic workers and African employers in the townships of Soweto’ MA
research report, University of the Witwatersrand, 2008 http://wiredspace.wits.ac.za/
handle/10539/7611 (accessed 24 April 2013); M Russell ‘The employment of
domestic workers by black urban households’ CSSR Working Paper No 26 (2002)
http://www.cssr.uct.ac.za/sites/cssr.uct.ac.za/files/pubs/wp26.pdf (accessed 24
April 2013).
215 Eg, recognition of prior learning (RPL), which is well established in the South African
education and training context but still lacks a national framework. See A D’Souza
‘Moving towards decent work for domestic workers: An overview of the ILO’s Work’
ILO, Working Paper 2/2010 http://www.ilo.org/wcmsp5/groups/public/@dg
reports/@gender/documents/publication/wcms_142905.pdf (accessed 29 May 2013).
216 CASE (n 209 above) 13.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 207

different occupational categories in the same way that certain other

sectoral determinations and collective agreements provide for minimum
wages and benefits according to job classification and grading systems.217

5.4 Addressing the role of institutions

It has been noted that the labour inspectorate, the CCMA and the Labour
Court and in limited cases, the criminal courts, are responsible for
enforcing the rights of domestic workers in addition to those of all other
workers. Problems bound up with the operation of the labour inspectorate
in a sector such as the domestic sector have been discussed above.218 It has
also been noted that, although a significant proportion of disputes that
come before the CCMA are referred by domestic workers, these are limited
to unfair dismissal disputes and in practice, therefore, the CCMA does not
serve as a forum for enforcing rights during the course of their
employment.219 The Labour Court, on the other hand, is virtually
inaccessible to domestic workers due to the cost of proceedings.220 The
basic reason for these problems, it has been suggested, is that the
institutions that have been created for the enforcement of workers’ rights
have essentially been designed to operate in an environment of standard
employment and large-scale workplaces, where trade union organisations
makes it possible for workers to institute proceedings against their
employers in the courts as well as the CCMA. In contrast, the conditions
of domestic employment affectively rule this out.

Given these realities, the question is whether it is feasible to seek to

adapt the existing institutions and, in particular, to expand the mandate of
the CCMA, given its accessibility compared to the Labour Court, to deal
with all disputes arising between domestic workers’ and their employers.
While this would have the advantage of building on existing capacities, the
broad mandate of the CCMA combined with limited resources raise
question marks over its ability to respond to the special challenges and
unique conditions of the domestic sector without a considerable injection
of new resources to develop the required capacity.221 The alternative
would be the establishment of a specialised agency designed to deal with
the needs of domestic workers and other workers in precarious or non-
standard forms of work. Policy decisions are required to resolve questions
such as these as more research is needed to clarify the options.

217 SADSAWU Submission to the Department of Labour on Domestic Worker Wages

and Conditions of Employment (September 2010; unpublished).
218 See parts 2.3.1 and 2.3.2 of this chapter (above).
219 See part 5.2.7.1.1 of Chapter 3 (above).
220 See part 3.3.2 of this chapter (above).
221 The CCMA Director’s most recent report speaks of ‘stringent financial constraints’
experienced in recent years: CCMA Annual Report ‘Revolutionising workplace
relations’ (2011/2012) 8 http://www.ccma.org.za/UploadedMedia/CCMA%20
Annual%20Report%202012(1).pdf (accessed 25 April 2013).
208 Chapter 5

A starting point would be the operation of existing advice offices and

community organisations which in practice offer support to unorganised
workers, including domestic workers, in seeking to enforce their rights.222
A significant case study is offered by the Labour Community Advice,
Media and Education Centres (LAMECs) launched by Workers’ World
Media Productions (WWMP) in 2011.223 The centres are intended to offer
‘more than advice and case handling’ but to serve as ‘a physical space for
cultural, educational and community renewal’224 for ‘marginalised’
workers including casual workers, migrant workers, farm workers and
domestic workers. Importantly, they are located within the communities in
which the target groups reside to ensure ease of access. Amongst the
services provided are education and training as well as advice and referrals
of disputes relating to all work-related issues such as unfair dismissal, UIF
claims, social grants and immigration issues.

An initiative such as this presents a promising opportunity to educate,

mobilise and empower domestic workers on the basis of the protection of
their basic rights. The possibilities of developing organisation amongst
domestic workers are dealt with more fully in Chapter 7 (below). For
present purposes it is necessary to consider the lessons that can be learnt
from the point of view of creating effective institutions for the enforcement
of the rights of domestic workers and other marginalised workers. A
primary lesson is the importance of locating such institutions in places that
are accessible to such workers. Equally important, the services offered
should be free or affordable to low-paid workers. A strong case can be
made out for state funding to ensure this, on the basis of the state’s
responsibility to give effect to the basic rights of all workers in terms of the
Bill of Rights225 as well as the specific requirements of Convention 189 to
remedy shortcomings in the existing regulatory framework.

However, the LAMECs project and other non-governmental

organisations performing functions which ultimately belong to the state
highlight the scope for establishing partnerships between such
organisations and relevant government institutions including the labour
inspectorate, immigration services and the CCMA aimed at providing
broader access to justice. Such an enterprise would in the first instance
need to develop the necessary knowledge base, for which further research
is required. A central task would be to re-examine the roles of existing
institutions and possible adaptations in their modus operandi as well as to

222 Eg, the Casual Workers’ Advice Office in Germiston, Gauteng: see Casual Workers’
Advice Office ‘Donations appeal’ http://www.labournet.net/world/1109/CWAO_
donate.pdf (accessed 25 April 2013).
223 The information below, unless otherwise stated, is taken from WWMP ‘Labour
Community Advice, Media and Education Centre (LAMEC)’ www.wwmp.org.za/
docs/ LAMECpamphlet.pdf (accessed 22 April 2013). Centres are currently
functioning in Wynberg, Johannesburg and Khayelitsha, Cape Town.
224 WWMP ‘Lamecs Concept Document’ (October 2011, unpublished) 1.
225 As discussed in Chapter 2 (above).
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 209

assess the need for new institutions and the division of labour amongst
them. Some tentative conclusions which may be drawn from the
discussion thus far and may form a basis for such research are considered
below.

6 Towards an effective system for the enforcement

of domestic workers’ rights

The starting point has to be the unique circumstances of the domestic

employment relationship. The violation of domestic workers’ rights in
South Africa, as elsewhere, is closely bound up with the privacy of the
workplace and the power imbalance between the employer and the
worker. Employers’ manipulation of intimacy to cast the domestic worker
as ‘one of the family’ enables them to extract more of the domestic
worker’s time and labour ‘on the basis of charitable obligation’.226

But, despite this imbalance of power, the relationship is not entirely

one-sided. Domestic workers, it has been argued, are not helpless victims
but human beings possessed of the potential of self-realisation and all other
human capacities. Ally observes that domestic workers have creatively
used the intimacy of their work and cultivated personal relationships with
their employers, amongst other things to regulate their wages and working
conditions and informally place limits on their work.227 The following
quotations highlight how these individual actions form part of a collective
‘intimate work culture’:228

You smile with them. You talk to them. Because the monies they are earning
will one day build you a house also. I have learned now to laugh and smile
with these rich people.

I say for my employer I have to make her feel also like she is a person … she is
also a human being, and can feel also that [Cynthia], no, she can’t clean all
the windows today, you see. Because she has got that thing in her now, to say
that she is person, with the feelings to see what is too much.

She told me it’s alright, I mustn’t work if I am tired … You see, you must have
feelings for them. Or, they will not have any feelings for you.

Similarly, domestic workers have used informal networks and

manipulated their employers’ trust in them to assist work-seekers and
broker favourable conditions of employment for them.229 By extension,
the power of informally regulating terms of employment translates into a
power to ensure that those terms are adhered to, or at least to exert

226 Ally (n 83 above) 99.

227 Ally (n 83 above) 95 108.
228 Ally (n 83 above) 103-104.
229 Ally (n 83 above) 109-110.
210 Chapter 5

influence on employers, by similar informal means. A fundamental

weakness of the existing regulatory framework in the sector, underlying
many of the barriers to compliance, is the fact that it disregards the
emotional and affective dimensions of the domestic employment
relationship and, instead, seeks to ‘depersonalise’ and ‘formalise’ it.230 The
consequence, Ally argues, is that the state becomes ‘the proxy for workers
– their articulator, representative and protector’.231

From the standpoint of developing a normative framework on

enforcement, driven by the transformative values of the Constitution and
decent work,232 it is submitted that the emphasis should fall on
empowering rather than merely protecting domestic workers. It is a given
that, in the individual employment relationship, the worker will ultimately
need to deal with the employer on a one-to-one basis, also in negotiating
the implementation of his or her rights. The first aim should accordingly
be to preserve space for such measures of influence as workers have
managed to build up through personal agency and, in the context of
constructing a responsive regulatory framework, seek to reinforce rather
than negate that agency.233

As far as the institutional framework is concerned, the need for various

adaptations is indicated by the discussion above. In the case of labour
inspection this is so even though, as we have seen, the provisions
governing inspection of the domestic workplace are in accordance with
Convention 189; legality is therefore not the issue. Rather, the question is
whether the standard form of inspection as provided for in Chapter 10 of
the BCEA, even when viewed as a measure of last resort, is the most
appropriate mechanism for building a culture of compliance in the
domestic sector. Responses on the issue from ILO member states in the
discussion leading up to the adoption of Convention 189 contain some
useful ideas for adaptions towards this end.234 One suggestion was that the
control mechanism should consist of a ‘specialised labour inspection
service’, presumably comprising a body of inspectors trained to interact
with domestic employers and employees in a spirit of meaningful
engagement.235 Even more creative was the following proposal from a
domestic workers’ trade union in the Caribbean:236

A system could be put in place to monitor violations against domestic

workers without visiting the home, except in extreme cases of reported abuse,
sexual harassment, forced labour and human trafficking. This system could

230 Ally (n 83 above) 95-96.

231 Ally (n 83 above) 88.
232 As discussed in part 2.1 of this chapter (above).
233 See Ally (n 83 above) 96, 114-117 and 154-159.
234 See ILO Report IV(2): Decent Work for Domestic Workers Geneva, 2010 203-208.
235 Proposed by the government of Morocco: ILO Report (n 234 above) 205.
236 Proposed by the National Union of Domestic Employees, Trinidad & Tobago: ILO
Report (n 234 above) 208.
 Nurturing a culture of compliance with domestic workers’ rights in South Africa 211

include conducting interviews or giving the employers questionnaires

concerning wages and terms and conditions of employment, with a stipulated
time to respond. It should be mandatory to respond and a penalty should be
imposed on anyone who refuses to do this or who gives false information.

Measures such as this, it is submitted, could go some way towards

minimising tensions between employer and worker that may be
aggravated by a perceived invasion of privacy in the form of an inspection
arising, in essence, from an inability to reach agreement as to the content
of employment rights and duties.

Dispute resolution in the domestic sector, whether at the CCMA or by

a dedicated structure created for the purpose, is another critical area where
adaptation is needed to promote the objectives of meaningful engagement.
The adversarial and quasi-judicial nature of CCMA proceedings is highly
inappropriate to the sensitive relations between domestic workers and their
employers. Even though it is obligatory for arbitration hearings to be
preceded by a conciliation hearing,237 the circumstances are not
auspicious. Bhorat et al explain:238

CCMA commissioners … are under immense case load pressure and the need
to meet case efficiencies. The daily efficiencies for commissioners are: two
con-arbs per day, three conciliations per day, two arbitrations per day, four in
limines per day or four rescissions per day. Based on these efficiency
parameters, some have argued that this may, in some cases lead to hasty
settling of disputes and possibly also in superficial settlements which fail to
address the underlying causes of conflict or the real needs of the parties.

It is thus unlikely that commissioners would be able to devote much time

to exploring constructive ways of resolving differences between domestic
workers and employers, having regard to the sensitivities on both sides; yet
this, it is submitted, is precisely what is needed. Alternatively, if the dispute
remains unresolved at conciliation, the only remaining option for the
employee is to refer the matter to arbitration.239 This, however, is equally
unlikely to produce a lasting solution in that the element of personal trust
in the employment relationship may not survive an arbitration award in
favour of one party against the other. What is needed, it is submitted, is a
dispute resolution system attuned to the realities of personal working
relationships in a sector such as this that will be focused primarily on
conciliation as a means of preserving the employment relationship. While

237 LRA, sec 191.

238 H Bhorat et al ‘Understanding the efficiency and effectiveness of the dispute resolution
system in South Africa: An analysis of CCMA data’ Development Policy Research
Unit (DPRU) Working Paper 09/137 (May 2009) 7. The most recent CCMA Annual
Report indicates that the tempo of conciliation proceedings and settlement rates have
continued to increase: CCMA Annual Report (n 221 above) 43.
239 LRA, sec 191(5). An interesting feature, which deserves closer examination, is that
disputes involving domestic workers on average have low turnaround times at every
stage of the process compared with other sectors: Bhorat et al (n 238 above) tables 5-7.
212 Chapter 5

more research is needed as to the forms that such a system may take, it is
suggested that in-depth engagement with workers and employers in the
domestic sector, and other sectors where a similar approach is called for,
will be essential in designing processes that will enjoy confidence on both
sides.

However, institutional intervention can only be a last resort in building

a culture of compliance. The acid test lies in the relationship between
worker and employer and, more specifically, the degree to which it is based
on a shared understanding of and respect for their mutual rights and
obligations. This, in turn, will depend on how far the barriers to
compliance240 can be eroded or dismantled by policies along the lines of
those suggested in part 5 above. The development of appropriate forms of
organisation among employers as well as workers (as discussed in Chapter
7 below) is crucial to the success of all the suggested policies, including
awareness-raising and the empowerment of individual workers. Training
and professionalisation would likewise contribute to individual
empowerment and address the under-valuation of domestic work as well
as the perceived inferiority of domestic workers. The development of an
appropriate institutional framework, combined with incentives for
compliance to supplement penalties, would combat employers’
perceptions of the consequences of non-compliance as well as workers’
fears of victimisation in the event of seeking to enforce their rights. Finally,
lack of resources on the part of certain employers would undoubtedly be a
factor to be taken into account by responsive regulatory structures seeking
to develop rules and means of securing compliance that correspond to the
real conditions of workers and employers.

It deserves to be repeated in conclusion that, without the development

of effective organisations representing the interests of workers and
employers respectively, none of these objectives is likely to be achieved. It
has further been argued that participation of such organisations in
regulatory structures would be essential both in informing the content of
measures to be taken and in giving them legitimacy. This applies also to
developing a more effective framework for the regulation of migrant labour
in the sector (and, potentially, in other sectors) based on the transformative
values of the Constitution and the principles of decent work, which is
discussed in Chapter 6 below.

240 Discussed in part 4 of this chapter (above).

 6
CHAPTER
RIGHTS ACROSS BORDERS:
POLICIES, PROTECTIONS AND
PRACTICES FOR MIGRANT
DOMESTIC WORKERS IN SOUTH
AFRICA

Jennifer N Fish*

You see here in South Africa, most of the people they underrate us, mostly
they isolate us; in our workplace most of the people they want to pay us low
money. Maybe they will say R50 a day, because they know us Zimbabweans
we are stranded and desperate people, and we don’t have money. In our
country we are suffering and because I have nowhere to go and nothing to do
in South Africa, we end up agreeing [accepting] that money. And that’s the
problem that we’re facing here in South Africa: we want sometimes to send
food back to our children back home but we can’t afford to do that because of
the money they are giving us.1

1 Introduction

Domestic work assures the regeneration of society through care labour

extended to families, children, elderly and households. As the global
economy expands, this sector has grown, with a distinct increase in
migrant informal worker populations fulfilling the needs of household
reproduction. Because it takes place in the private sphere, and is often
considered an extension of ‘women’s work’, domestic labour largely
remains informal. International labour, policy and gender debates on
domestic work have confronted a prevailing tension between the sector’s
growth worldwide and the pervasive gaps in social, economic and legal
protection. Over the past decade domestic work policies have emerged in

* I am thankful to colleagues at the Social Law Project, UWC, who contributed

substantially to the content, conceptualisation and analytic emphases of this chapter. In
particular, I thank Verne Kleinsmidt for her foundational efforts on this chapter and
Ray Mungoshi for his research on several of its topics. Ernest Booys provided
substantive research to assure the most contemporary data on the rapidly shifting topic
of migration in South Africa. Fairuz Mullagee and Darcy du Toit have informed
pivotal conversations through analytic insights over the course of the past four years of
shared scholarship and research in Cape Town, Geneva and Amsterdam. This chapter
was made possible through their visionary and sustained work to assure both academic
and applied measures of social protections for domestic workers in South Africa.
1 Statement by a migrant domestic worker at DWRP focus group, Cape Town, 11 July
2009.

213
214 Chapter 6

certain countries to begin to build systems of protection for this highly

marginalised group of workers. Yet the persistent feminised and devalued
nature of domestic work, coupled with its largely informal nature, pose
serious challenges to regulation and policy implementation. This leaves
most domestic workers in precarious working conditions, with limited
opportunities to access the social and legal protections established at state
and international levels. When we consider the impact of migration on
domestic work, both the vulnerable2 nature of employment in this sector
and its effect on those who cross national borders to seek economic
livelihood intensifies substantially.

The face of domestic work worldwide is characterised increasingly by

migrant workers, the majority of whom are women. According to the
International Labour Organisation’s most recent and comprehensive
report, the global sector contains approximately 53 million documented
domestic workers, 83 per cent of whom are female.3 In the context of
globalisation and the growing interconnected flows of labour resources,
domestic work has become one of the largest sectors of employment in the
informal sphere. In 2011, after two years of tripartite discussions, the
International Labour Organisation (ILO) established the first set of global
standards for domestic work as a means towards formalising this sector
and promoting labour rights, particularly for migrants who fall outside the
reach of most employment protections.4 This global policy represented the
most comprehensive attempt to respond to the transnational labour
realities of globalisation by proposing protections also for migrant workers
in the informal part of the domestic worker sector.

In the course of this process South Africa came to be seen as a model

country in terms of the establishment of labour policies for domestic
workers.5 Given the particular history of household service labour under
apartheid, domestic work remains a deeply embedded social institution
and also remains one of the top sources of employment for black women.6
The legal framework that emerged in the post-1994 democratic

2 S Ally problematises the notion of ‘vulnerability’ in relation to the reification of

domestic workers’ dependency on the state in South Africa’s post-1994 construction of
social rights and labour protections. For her sophisticated analysis of this distinct
dialectic relationship between ‘statecraft’ and ‘vulnerability’, see S Ally From servants to
workers: South African domestic workers and the democratic state (2009).
3 ILO Domestic workers across the world: Global and regional statistics and the extent of legal
protection (2012).
4 Convention 189 on Decent Work for Domestic Workers (‘Convention 189’),
accompanied by Recommendation 201 concerning Decent Work for Domestic
Workers (‘Recommendation 201’), discussed in part 2.1 below.
5 Author’s ethnographic observations, International Labour Conferences, Geneva, June
2010 and June 2011.
6 According to Statistics South Africa, the number of domestic workers stood at 840 000
in the last quarter of 2012, the vast majority of whom were African. This exceeded the
total number of women in the manufacturing industry (557 000) and was second only
to the number of women doing informal work in the non-agricultural sectors
(874 000): Quarterly Labour Force Survey 4th quarter 2012 Table 3.1.
 Policies, protections and practices for migrant domestic workers in South Africa 215

dispensation, which placed South Africa amongst the most advanced

countries in the world in terms of labour rights, saw virtually the full range
of legal protections extended to domestic workers.7 The expansive
national coverage of basic conditions of employment, unemployment
insurance, minimum wages contained in a dedicated sectoral
determination8 and the right to organise have since become benchmarks
for the integration of domestic labour law within national legislative
frameworks.

As we consider South Africa in the context of globalisation, the rapid

increase in transnational migration is changing the composition of the
domestic work force and complicating the application of established legal
rights. These demographic shifts are critical to assessing the impact of
labour protection for domestic workers because of the high and escalating
rates of political and economic migration to South Africa. The
International Red Cross and the UN Refugee and Food Aid Agencies
estimate that at least 10 million African refugees are now living in South
Africa.9 According to the most recent UNHCR figures, South Africa was
the ‘world’s largest recipient of individual applications’ for asylum in
2011.10 In 2012, more than 100 000 people sought asylum in South
Africa.11 From a comparative perspective, more new asylum seekers arrive
in South Africa each year than in all 27 member states of the European
Union (EU).12

While this data offers overviews of political migration to South Africa,

economic migrants are not documented in these figures. Like their
housing, education and transient status, employment placement is most
often informal and therefore very difficult to capture. As in the global
context, access to employment in private households provides a means to
circumvent residency and labour requirements. This reality presents a
further challenge to the relevancy of the existing labour legislation in that,
despite rapid increases in migrant populations, the national labour laws
have not yet aligned to include non-residents. As a result, domestic labour
law in South Africa is weakened in terms of relevancy and enforceability
because its coverage does not extend to migrants.

7 See Chapters 3 and 4 (above). At the time of writing the right to compensation for
occupational injuries and diseases is the sole protection that is not available to
domestic workers, but the Department of Labour has expressed its intention to correct
the anomaly: see part 2.1.1 of Chapter 4 above.
8 Sectoral Determination 7: Domestic Work Sector (South Africa), discussed in part
5.1.2 of Chapter 3 (above).
9 ‘427,200 new asylum seekers a year in South Africa’ NL-Aid 22 June 2011 http://
www.nl-aid.org/continent/sub-sahara-africa/427200-new (accessed 6 March 2013).
10 UNHCR ‘Facts and figures about Refugees’ http://www.unhcr.org.uk/about-us/key-
facts-and-figures.html (accessed 18 October 2013).
11 ‘South Africa struggling with asylum seekers’ Fox News 12 April 2012 http://
www.foxnews.com/world/2012/04/12/south-africa-struggling-with-asylum-seekers/
(accessed 18 October 2013).
12 NL-Aid (n 10 above).
216 Chapter 6

This chapter explores how South Africa’s legislative framework of

domestic work intersects with its immigration laws, as well as the realities
of substantial increases in flows of migrant workers who enter the country
and gain employment in private households. After setting the global
context for the increase in feminised labour migration, I explore the
fissures between law and practice within South Africa’s existing context.
The discussion then moves to a larger analysis of national, regional and
international legal frameworks that set standards for domestic work in
South Africa. Gaps in policy and implementation form a central analytic
framework for this chapter, illustrated through a case study of the
application of social security protections for migrant domestic workers.
The chapter closes with a series of ideological and policy change proposals
that emerge from a recognition of the vital interplay between migration
and domestic work in the South African context.

2 Migration, domestic work and globalisation

South Africa’s influx of migrant workers reflects global patterns of

increased movements of people, capital, and culture across borders.13
While domestic work holds a particular meaning in South Africa’s history,
contemporary trends link the growth in the global economy with an
expansion of service labour. The intersection of shifting economic,
political and social forces has manifested in both unprecedented numbers
of migrant labourers and increasing demands to evaluate the relevancy of
global work standards, human rights and legal protections for populations
who lack access to formal citizenship. To situate South Africa within this
larger global context, let us turn to an overview of the patterns that shape
migration and domestic work trends in Sub-Saharan Africa.

2.1 Global migration patterns

The unprecedented numbers of people who are leaving their home

countries to settle in other countries for various reasons has prioritised
questions of migration and citizenship rights within the international
community.14 According to the United Nations Population Division
(UNPD) estimates from 2010, the number of people living outside their
country of birth rose to at least 214 million, more than double the 1980

13 For analyses of the interconnections among migration, globalisation and gender, see
S Sassen Globalization and its discontents (1998); CBN Chin In service and servitude:
Foreign female domestic workers and the Malaysian ‘modernity’ project (1998);
P Hondagneu-Sotelo Doméstica: Immigrant workers cleaning and caring in the shadows of
affluence (2001); RS Parreñas Servants of Globalization: Women, migration and domestic
work (2001); K Chang & L Ling Chang ‘Globalization and its intimate other: Filipina
domestic workers in Hong Kong’ in M Marchand & AS Runyan (eds) Gender and global
restructuring: Sightings, sites and resistances (2000).
14 S Peberdy Selecting immigrants: National identity and South Africa’s immigration policies
1910-2008 (2009) 1.
 Policies, protections and practices for migrant domestic workers in South Africa 217

figure of 102 million.15 In contrast to popular belief, the number of

migrants moving from developing countries to developed countries is
estimated to be a little more than a third of the global total. Migration
between developing countries represents almost the same figure, while
migration between developed countries is slightly lower, at less than a
third.16 The United Nations estimates that some 75 per cent of all
international migrants are located in 30 countries in the world, which
identifies them as the preferred destinations.17 This small sample of key
data trends parallels scholarship and applied research worldwide, which
consistently reflect sharp increases in populations ‘on the move’.

This increase in international migration comprises a key dimension of

globalisation,18 with free transnational flows of capital being accompanied
by rapid increases in the movement of people across national borders.
Contemporary globalisation literature repeatedly illustrates how the
nature of work has shifted towards informal, outsourced and transnational
forms, creating both new economic opportunities and increased
vulnerabilities for workers.19 The economic policies, political and social
developments that have accompanied these processes have strengthened
the interconnectedness of different levels of globalisation’s impact. Neo-

15 UN Department of Economic and Social Affairs The World's Women 2010: Trends and
Statistics 12 http://unstats.un.org/unsd/demographic/products/Worldswomen/WW
2010pub.htm (accessed 29 April 2013).
16 According to the ILO’s International labour migration: A rights-based approach (2010)
http://www.ilo.org/public/english/protection/migrant/download/
rights_based_approach.pdf (accessed 29 April 2013), international migrants represent
between 7% and 20% of the population in most Organisation for Economic Co-
operation and Development (OECD) countries. Most South–North migration is
headed for Europe and the United States, while North–North migration mainly takes
place within Europe and across the Atlantic. The ILO estimates that in 2010 there
were about 105.4 million economically active migrants (including refugees) across the
world, representing 44% of the total migrant population. These economically active
migrants and their families comprise 90% of the migrant population. Around 39.1
million are in Africa and Asia, somewhat more (around 60.2 million) are in Europe
and North America.
17 In 1998 migrants represented no more than 4.2% of the industrialised countries’ total
workforce. The United States absorbed the bulk of the increase (more than 81% of new
migrants from developing countries), while Canada and Australia accounted for
another 11%. In the European Union migrants were heavily concentrated in France,
Germany, Italy and the United Kingdom. Throughout the 1990s the number of those
coming from developing countries grew significantly faster than those originating from
other OECD countries, so that by 1998 they had become the bigger group,
representing some 57.8% of all migrant workers in the organisation’s member
countries: see The World's Women 2010 (n 16 above).
18 Globalisation refers to an inter-related series of processes that have emerged around
the world since the 1970s – a period which, following the internationalisation of world
trade and investment during past centuries, saw the increasing global connections
among production, labour, migration, money markets and finance capital, fuelled by a
revolution in information technology that made it all possible. See discussion in part 5
Chapter 1 (above).
19 For key overarching texts on these patterns of globalisation, see Marchand & Runyan
(n 13 above); J Rosenau Distant proximities: Dynamics beyond globalization (2003); A
Giddens Runaway world: How globalization is reshaping our lives (2002); D Held et al
Global transformations: Politics, economics and culture (1999); G Ritzer Globalization: The
essentials (2011); Sassen (n 13 above).
218 Chapter 6

liberalism – that is, liberalising trade, investment and markets by reducing

regulation – has given employers more flexibility in competing in global
markets.20 At the same time, the growth in outsourced modes of labour has
resulted in less accountability for protections within employment
relationships. The macro context of global restructuring also decreased the
relevance of the nation-state and increased the porousness of borders,
allowing easier access to an international labour market through formal
and informal networks. Dicken outlines how these macro changes have
impacted the labour economy:21

Until recently, the production process itself took place primarily within
national boundaries. Today the picture is very different: national boundaries
no longer act as ‘watertight’ containers of the production process.

Shifting relations from non-industrialised countries’ supply of raw material

for industrialised countries’ development processes has signified the
emergence of a new global division of labour. Within this restructuring of
the global economy, means of production have expanded beyond raw
materials to the intimate labour dimensions of household and family
reproduction, where domestic workers fulfil a vital role in this
transnational labour supply and production process.22

The impact of these economic shifts, as well as the accompanying neo-

liberal policies, has fallen disproportionately on the developing world. In
national contexts with very limited resource bases, migration becomes one
of the few options for populations left destitute by economic change.
Although global migration provides increased economic and social capital
opportunities, we must not overlook the personal struggles and human
impacts of vast relocation and family/community separation. Migration is
beset with difficulties ranging from the costs of travel to the risks associated
with arriving in unfamiliar societies, often without legal authorisation or a
dependable support network and with little financial resources.23 These
challenges are especially defining for poorly educated sectors of the
population, whose position in the labour market is tenuous. Social and

20 This global shift was also referred to as the ‘Washington Consensus’, with reference to
the policies considered necessary for market-driven economic growth by key financial
institutions based in Washington DC, such as the World Bank and the International
Monetary Fund. The political contestation surrounding these policies, which has
dominated much of the last two decades, will not be discussed here; suffice it to note
that organised labour has resisted many of the measures associated with neo-
liberalism, especially those resulting in loss of jobs, and has sought to promote
alternative policies. For a leading critique of neo-liberalism, see JE Stiglitz Globalisation
and its discontents (2002). See also the discussion in part 5 of Chapter 1 (above).
21 P Dicken Global shift: Reshaping the global economic map in the 21st century 4th ed (2003)
8-9.
22 See E Boris & RS Parreñas Intimate labors: Cultures, technologies and the politics of care
(2010).
23 In 2005, eg, the unauthorised population of the USA was estimated at 10.3 million
people, including 5.9 million unauthorised Mexican immigrants: GH Hanson ‘Illegal
migration from Mexico to the United States’ NBER Working Paper 12141 (March
2006) 1 http://www.nber.org/papers/w12141 (accessed 26 April 2010).
 Policies, protections and practices for migrant domestic workers in South Africa 219

psychological costs, such as the prospect of leaving families behind, are

also central influential factors. Associated risks, including the possibility of
failing to obtain the expected employment or to earn the anticipated wage,
or having to live under deplorable conditions, also deter prospective
migrants from leaving home.24

Furthermore, given these realities, families of migrants throughout the

world carry an immeasurable psychological burden as a result of
separation, emotional trauma and increased day-to-day risk factors. These
realities are easily overlooked in mainstream analyses of global migration.
When we consider the increase in the domestic labour sector, coupled with
the intimate nature of the work, its isolation and vulnerability within a
private household work context magnifies the human costs of migration.

Migrant numbers are swollen further by the unprecedented number of

refugees globally, which peaked at around 18.2 million in 1993 and
thereafter declined somewhat.25 The growth in the number of asylum
claimants nevertheless has raised anxieties among the signatories to the
1951 Geneva Convention and the 1967 Protocol relating to the Status of
Refugees about their capacity to host more political migrants. South Africa
has assented to but has not ratified the Convention Relating to the Status
of Refugees, which defines a refugee as any person who26

[a]s a result of events occurring before 1 January 1951 and owing to well-
founded fear of being persecuted for reasons of race religion, nationality,
membership of a particular social group or political opinion, is outside the
country of his nationality and is unable or, owing to such fear, is unwilling to
avail himself of the protection of that country; or who, not having a
nationality and being outside the country of his former habitual residence as a
result of such events, is unable or, owing to such fear, is unwilling to return to
it.

Article 3 of the Convention requires states parties to apply the provisions

of the Convention to all refugees. Accordingly, states may not discriminate
on the basis of ‘race, religion or country of origin’. In the case of refugees
who are employed, the Convention requires contracting states to give them
the same treatment as their own nationals. As will be discussed below,
these distinctions between refugees, asylum-seekers and economic

24 There is vast literature on the factors impacting on migration. For an illuminating

discussion in relation to Southern Africa, see Southern African Migration Project
Transnationalism and new African immigration to South Africa Migration Policy Brief No 9
(undated). For an outline in relation to migrant domestic workers, see ILO Decent work
for domestic workers Report IV(1), International Labour Conference, 99th Session,
Geneva (2010) (hereafter ‘the ILO Report’) paras 32-37.
25 American Association for the Advancement of Science Atlas of population & environment
‘Overview: Population and Consumption Trends’ (2001) 17 http://atlas.aaas.org/pdf/
12-20.pdf (accessed 30 October 2013).
26 Convention relating to the Status of Refugees, 189 UNTS 150; entered into force 22
April 1954.
220 Chapter 6

migrants become central to access to legal policies and practices in South

Africa.

2.2 Theories of migration

Predominant economic analyses of migration have focused on how

economic differences within and between countries influence population
movements. This foundational body of literature on migration repeatedly
explains the phenomenon through economic 'push-and-pull factors.27
Todaro, for example, draws from this body of work to illustrate that the
decision to emigrate is the logical product of the expected income
differential between the home and the destination countries.28 The
application of this framework suggests that labour migration occurs when
the aggregated effects of push and pull factors outweigh the costs and risks
of migration. This predominantly quantitative analysis of migration has
framed the field over the past three decades. Yet we must also distinguish
between the two sets of factors by recognising that ‘pull factors differ from
push factors in that they are based on expectations rather than on actual
experience’.29

Other theoretical bodies have challenged the western and overly

simplistic notion of the predominant economic focus within migration
theories, calling for a wider scope of analysis and greater regional
specificity.30 Sinclair, for example, has questioned the relevance of the
push-pull factor frameworks in Southern Africa, stating that such a model
‘leans towards a contextual simplicity and a particular economic
rationality that are not unquestionably universal’.31 A range of applied
analyses of migration have examined disproportionate impacts on already
marginalised populations, such as women, ethnic, religious and sexual
minorities.32 Diverse perspectives such as these frame complex and
expansive theoretical, political and applied debates surrounding
explanations for and responses to the escalating rates of migration
worldwide. The scope of these debates extends far beyond the goal of this
chapter and is well documented. My intention is to contextualise the most
relevant factors that set the larger context for the migration of domestic
workers, particularly in the Southern African region. Therefore, rather

27 For a classic historical perspective on the migration factors, see EJ Ravenstein ‘The
Laws of Migration’ (1885) 48 Journal of the Statistical Society of London 167. For a much
more contemporary study of migration in South Africa, see H Solomon Of myths and
migration: Illegal immigration into South Africa (2003).
28 Solomon (n 27 above) 7.
29 B Ramamurthy International labour migration: Unsung heroes of globalisation (2003).
30 Solomon (n 27 above).
31 MR Sinclair ‘Migration research in South Africa: Current trends and new directions,
Southern African perspectives’ Working Paper Series 60 Centre for Southern Studies,
University of the Western Cape, 1996 17.
32 S Benhabib & J Resnik (eds) Migrations and mobilities: Citizenship, borders, and gender
(2009).
 Policies, protections and practices for migrant domestic workers in South Africa 221

than focusing on the uni-dimensional push-pull explanations, I highlight

aspects of migration most relevant to domestic work as part of a complex
and multidirectional interaction amongst a range of economic, political
and social trends.

Migrants are driven across national borders by numerous forces,

including even environmental crises. The ILO has argued that
contemporary migration is caused mainly by growing economic disparities
amongst countries, a shortage of jobs, and tenuous human security
conditions. In addition to economic factors, political stability (conflict and
wars), social circumstances (including oppression stemming from race,
class, gender, religion and sexuality), cultural ties, ease of access,
environmental factors (food security and famine) and social networks form
central motivations in migrants’ decision to relocate. In addition, people
are forced to leave because of overcrowding which exerts pressures on
limited natural resources. Related factors include ‘inequality between poor
and rich countries; growing urbanisation; reduction in the cost of transport
and communications, resulting in increasing interactions among societies;
the absence of respect for human rights in some countries; and
establishment of migration networks by earlier migrants’.33 These
interrelated socio-economic, political, environmental and demographic
circumstances reinforce one another, making the isolation of particular
explanatory push/pull dynamics extremely difficult to unscramble.

Central to these processes, the migration of populations pronounces

race, class and gender divides within an overarching global context that
adds citizenship and national origin to the intersections of inequality as
they play out in the transnational ‘trade’ of domestic workers. The global
economy has reinforced a racialised division of labour that reifies aspects
of slavery and colonial eras, where dark-skinned populations provide
labour for wealthier, and often lighter-skinned privileged groups. Native
populations in richer countries, for example, tend to shun certain jobs that
are associated with lower socio-economic status, people of colour and
immigrant labour pools. As the ILO has noted, this creates a bifurcation in
the market, whereby perceptions of ‘low-skilled jobs in secondary labour
markets in informal and small enterprise sectors become dependent on
low-skilled migrants, often those in irregular status’.34 These immigrant-
dependent jobs are located mainly in agriculture, construction, cleaning,
catering, hospitality services, tourism, care work, domestic service and
entertainment.35

33 ILO ‘Towards a fair deal for migrant workers in the global economy’ International
Labour Conference, 92nd Session, Geneva (2004) http://www.ilo.org/public/libdoc/
ilo/2004/104B09_110_engl.pdf (accessed 6 May 2013).
34 ILO (n 16 above) 24.
35 ILO (n 16 above) 23.
222 Chapter 6

Feminist analyses question the characterisation of domestic work as

‘low skilled’, given the expanse of responsibilities and the central role of
social reproduction of the household societal unit.36 Campaigns for the
rights of domestic workers in the United States, for example, have focused
on the immeasurable value of love labour and ‘Caring Across
Generations’.37 Analyses of efforts to formalise domestic work through the
establishment of legal protections emphasise that domestic work is ‘real
work’, worthy of legal and social protections and realistic remuneration.
Yet the devalued and underpaid nature of this labour can be attributed to
the racialised, gendered and migrant-based division of the international
labour pool, with women of colour for the most part supplying care needs
for households throughout the global economy.

Parallel to the wider global landscape that relies upon women of

colour to perform household service labour, migrants’ ability to move –
especially in the case of workers without formal skills – is powerfully
constrained by legal, economic, and social barriers. As they relocate,
migrants are constantly reminded of their vulnerability to state practices of
inclusion and exclusion.38 Such macro political, economic and social
structures create increased power differentials where the insecurity of
migrant domestic workers’ positions is heightened in the context of their
‘outsider’ status.

2.3 The gender face of migration

The changes in the macro context of globalisation discussed above carry a

distinct gender dimension as the rate of women’s migration is increasing
throughout the world. Estimates suggest that 49 per cent of the migrants
globally are women.39 For many migrant women, seeking domestic work
even under the worst conditions is often the only available option. In order
to pursue a migrant work path many women, including highly qualified
professionals, downsize their professions to seek employment as domestic
workers, carers, commercial sex workers and cleaners, performing roles
that locals may be reluctant to fulfil.

Migrant domestic workers face increased vulnerability because their

frequently undocumented citizenship status places them in positions of

36 See also the discussion in part 4 of Chapter 1 and parts 5.2.8 and 7.6 of Chapter 3
(above).
37 Caring Across Generations website: http://www.caringacross.org (accessed 28 June
2013).
38 Peberdy (n 15 above) 1.
39 The participation of women in international migration was lowest in Western Asia, at
around 39%, followed by Southern and Northern Africa (both 43%) and Southern
Asia (45%). At the other extreme is Eastern Europe, where the share of women
international migrants was around 57%, followed by Central and Eastern Asia (both
55%) and Northern Europe (53%). United Nations ‘Population and families’ http://
unstats.un.org/unsd/demographic/products/Worldswomen/WW2010Report_by%
20chapterBW/Population_BW.pdf (accessed 27 June 2013).
 Policies, protections and practices for migrant domestic workers in South Africa 223

greater dependency on private employers and the informal economy for

subsistence. Their ability to move within the labour market is severely
limited by state policies of inclusion and exclusion according to citizenship
qualifications.40 It has been noted that the unrecognised role played by
domestic workers liberates others – mainly women with greater access to
economic resources – from the duties of caring for the family and home.41
Migrant workers who ‘do the mothering and caretaking work of the global
economy’42 have thus become vital to release women to leave their homes,
while ensuring that men remain freed from domestic labour
responsibilities. As a result, paid domestic work is essential to the
continued growth of the local and international economy.43

Yet, in the wider global context, studies across developed and

developing contexts have shown that migrant domestic workers’ wages are
generally poor and their terms of employment are often extremely
exploitative.44 Even in countries that have legislative requirements, such
as South Africa, exploitation is pervasive because of the larger power
dynamics at play.45 As we see throughout the world, marginalised race,
class and gender become even more pronounced when domestic workers
are also undocumented immigrants, without access to established national
labour protections. These realities exist as a result of the tensions between
the demand for care labour in the global economy and the increase in
migrant flows into this sector. Given the large gap between care needs and
protections for the pools of migrant workers who fulfil this sector, effective
policies and their associated enforcement mechanisms must adapt to meet
the realities of this gender dimension of globalisation.

In the existing global economic and labour context, domestic workers

‘nurture’ globalisation by providing a ‘regime of labour intimacy’46 within
the context of increased care needs. An added factor in recent years has
been the ageing population in the industrialised countries as the ‘baby
boom’ generation approached retirement age. In the United States, for
example, people aged 65 or older numbered 34.8 million in 2000,
representing 12.7 per cent of the country’s population, and was expected

40 Peberdy (n 14 above) 1.
41 See discussion in part 4 of Chapter 1 (above).
42 Parreñas (n 13 above).
43 The ILO Report (n 24 above) para 34 aptly describes it as ‘a form of global care chain
between workers with family responsibilities in the North, who require household
service, and temporary migrants from the South, who can provide them – albeit at the
cost of leaving their own families behind’. Migration to South Africa and other
migrant-receiving countries in the South, however, demonstrates that inequality can no
longer be defined in purely geographical terms; globalisation has brought about an
increasing inter-penetration of the first and third worlds.
44 M Satterthwaite ‘Using human rights law to empower migrant domestic workers in the
inter-American system’ in N Piper (ed) New perspectives on gender and migration:
Livelihood, rights and entitlements (2008) 275.
45 The extent of compliance with domestic workers’ legal protections in South Africa is
discussed in Chapter 5 (above).
46 Marchand & Runyon (n 13 above).
224 Chapter 6

to increase to 16.5 per cent by 2020. At the same time, the number of
people over 85 years of age, who will require the most care, will treble from
about 4 million to about 14 million.47 This demographic shift substantially
increases the demand for skilled migrant workers. Furthermore, as baby
boomers retire, the presence of domestic workers allows more privileged
sectors to assume these roles, thereby reinforcing a serious divide in terms
of economic opportunities. These patterns illustrate the importance of
recognising and responding to the gendered dimensions of globalisation,
as seen in the particular role women’s and migrants’ care labour plays
within the shifting global economy.

2.4 Migration in Southern Africa

The global migration patterns play out in particular ways throughout

Africa. The continent’s vast riches remain largely untapped within the
poorest regions in the world. Per capita food production dropped in Sub
Saharan Africa in the period 1990-1995, a trend that has not yet been
reversed.48 The effects of poverty in the region have been exacerbated by
low commodity prices and unstable and low-paid jobs, coupled with
unequal trade regulations, especially subsidies on cotton rich countries. As
a result, the region is most disadvantaged in the present trend towards
globalisation and economic restructuring. Whereas the rest of the world is
competing to make headway in achieving economic progress, Sub-Sahara
Africa is still contending with the pressing matters of overcoming extreme
poverty, addressing conflicts and responding to the HIV/AIDS pandemic,
all of which severely impact on migration flows throughout the
continent.49

Increases in migration caused by poverty in the Southern African

Development Community (SADC) region have been intensified by
economic liberalisation programmes as well as by the ravages of wars and
political instability since the 1970s. Many governments abandoned their
earlier interventionist approach to socio-economic development in favour
of more market-oriented policies. In particular, international financial

47 DM Walker, Comptroller General of the United States: Testimony before the Special
Committee on Aging, US Senate (21 March 2002) http://www.gao.gov/new.items/
d02544t.pdf (accessed 25 April 2010). Similarly, Statistics Canada noted in 2003 that
labour shortages were developing in various sectors as new entrants to the labour
market are fewer than the numbers of the ‘baby boom’ generation approaching
retirement age. ‘Greying workforce could mean labour shortages: Statistics Canada’
CBS News 11 February 2003 http://www.cbc.ca/news/business/greying-workforce-
could-mean-labour-shortages-statistics-canada-1.386086 (accessed 27 June 2013).
48 By the late 1980s, there were already some 10 million environmental refugees in Africa
with another 135 million people living on soils deemed vulnerable to desertification
while 80% of all pasture and range lands are threatened by soil erosion. In the last
quarter of the twentieth century land productivity was said to have declined by 25%:
DS Massey & JE Taylor International Migration: Prospects and policies in a global market
(2004) 64.
49 See, in general, A Adepoju ‘Internal and international migration within Africa’ in PC
Kok et al (eds) Migration in South and Southern Africa: Dynamics and determinants (2006).
 Policies, protections and practices for migrant domestic workers in South Africa 225

institutions required governments to implement labour market reforms

aimed at facilitating enterprise efficiency both in terms of flexibility and
productivity. While different countries adopted varying reforms, the
standard elements of such programmes included a reduction in public
sector employment, decentralised wage determination, cost containment
by marginalisation of trade unions, less regulation, easier avenues for
employers to terminate employees’ contracts and the establishment of
export processing zones (EPZs).50 In practice, countries that implemented
these programmes experienced massive increases in poverty levels as
unemployment soared.51 This larger economic landscape continues to
create an impetus for migration to more prosperous countries within
Africa.

Political and military destabilisation played an even more visible role

in the continent as a central factor leading to increased migration. The
politically-driven implosion of Zimbabwe and protracted civil war in the
Democratic Republic of the Congo (DRC) and the Great Lakes region,
have been amongst the most catastrophic experiences in recent years. Less
developed rural areas in many SADC countries have suffered further
devastation owing to sharp slumps in agricultural output. Many of those
left destitute as a result of these incidents have sought a means of
subsistence in informal work or in informal cross-border trade; others have
resorted to migration.

Concomitant hardships and structural adjustment programmes have

restricted government spending on public expenditure programmes that
could cushion unemployment.52 This places a heavier reliance on salary
remittances supplied by migrant workers. Lesotho, for example, was
earning 27.4 per cent of GDP from remittances in 2007,53 while in 2003
such returned income accounted for 90 per cent of recipient household
income in Senegal.54 Sander and Maimbo describe the connection
between migration decisions and larger national economic contexts by
noting that remittances help

50 C Fenwick et al ‘Labour law: A Southern African perspective’ International Institute

for Labour Studies, Geneva (2007) 5; JO Oucho ‘Migration Management Initiative for
the SADC Member States’ in Migration in Southern Africa Paper No 157 (December
2007) 4.
51 M Schoeman ‘From SADCC to SADC and beyond: The politics of economic
integration’ http://www.eh.net/XIIICongress/Papers/Schoeman.pdf (accessed 10
August 2009).
52 Adepoju (n 49 above) 30-31.
53 World Bank Remittances in Africa (2011) 11 http://siteresources.worldbank.org/
EXTDIASPORA/Resources/Remittances-in-africa.pdf (accessed 30 October 2013).
Despite the ongoing retrenchment of Basotho mineworkers at South African gold
mines, the contribution of their wages to GDP has remained at or above the 25 per
cent level due to increasing wage levels: see, eg. World Bank Migration and Remittance
Flows: Recent Trends and Outlook,2013-2016 (2013) http://siteresources.worldbank.org/
INTPROSPECTS/Resources/334934-1288990760745/MigrationandDevelopment
Brief21.pdf (accessed 30 October 2013).
54 ILO Report (n 24 above) 43.
226 Chapter 6

to stabilize irregular incomes and to build human and social capital.

Remittance receivers are typically better off than their peers who lack this
source of income. At the national level, remittances have a substantial effect
on the balance of payments and on foreign exchange.55

Salary remittances therefore reinforce the active interconnection between

micro-level households and national economies. Within the African
continent, this relationship becomes even more pronounced because of the
lack of state investments in public support programmes, limited resources
and compromised employment opportunities, all of which leave migration
to better-resourced African countries as an attractive option.

2.5 South Africa as a destination country

This chapter is concerned with the way in which the larger migration
processes, discussed above, play themselves out in relation to the domestic
work sector in South Africa. Political, social and economic conditions in
Southern Africa, and certain countries further to the north, influence a
stream of migrants to continue to enter South Africa at a rate that is
practically unstoppable. The perception of a better quality of life to be
attained by working (and staying) in South Africa56 makes this relatively
new democracy the main host country for migrant workers in the Southern
African region.57 Crush distinguishes key features that explain the
increased rates of migration to South Africa:58

First, the end of apartheid, a system designed to control movement and

exclude outsiders, produced new opportunities for internal and cross-border
mobility and new incentives for moving. The ensuing integration of South
Africa with the SADC region brought a major increase in legal and
undocumented cross-border flows and new forms of mobility.

SADC’s reconnection with the global economy, growing rates of rural

poverty and unemployment, HIV/AIDS and a ‘legacy of mass
displacement and forced migration’ following the Mozambican and
Angolan civil wars, also comprise central components of the particular
draw to South Africa.

55 C Sander and SM Maimbo ‘Migrant labour remittances in Africa: Reducing obstacles

to developmental contributions’ World Bank, Africa Region Working Paper Series No
64 (2003) i.
56 D McDonald et al ‘Challenging xenophobia: Myths and realities about cross-border
migration in Southern Africa’ Southern African Migration Project, Migration Policy
Series No 7 (1998) 13.
57 M Olivier ‘Enhancing access to South African social security benefits by SADC
citizens: The need to improve bilateral arrangements within a multilateral framework
(part 1)’ (2011) 1 SADC Law Journal 123.
58 J Crush et al ‘Migration in Southern Africa’ A paper prepared for the Policy Analysis
and Research Programme of the Global Commission on International Migration
(September 2005) 1.
 Policies, protections and practices for migrant domestic workers in South Africa 227

At the same time, South Africa has by far the largest economy in the
region and a vast preponderance in its balance of trade vis-à-vis its
neighbours. It is also the largest source of direct foreign investment in the
remainder of SADC59 and, to a lesser extent, in various other parts of the
continent. From the viewpoint of many African countries, South Africa
embodies the domination of foreign and international capital. By caring
for the homes and children of those driving the South African economy,
migrant workers from the north are contributing to the development of that
economy and its dominance within the region – thus ‘nurturing’ the
growth of globalisation in a very literal sense while, in their own lives,
suffering some of its worst consequences.

The extent of labour migration to South Africa more generally and of

the migration of domestic workers particularly, given the sector’s largely
undocumented nature, is a matter of speculation. An interesting glimpse is
provided by statistics compiled by a welfare centre for refugees and
migrants in Cape Town of those who sought its services in July 2012.60 Of
1 021 respondents, 52.7 per cent were aged between 18 and 35 and 36 per
cent were women.61 Significantly, 97.3 per cent of respondents were
documented, with the vast majority of those, or 74.3 per cent of all
respondents, being in the process of applying for refugee status. Only 48
respondents (4.7 per cent) possessed work permits.62

While this profile suggests the undocumented migrants are hesitant to

approach even agencies that might be considered sympathetic to their
plight, it sheds no further light on the composition or size of the migrant
population as a whole. It did, however, show that no fewer than 501
respondents from outside South Africa – that is, 49 per cent of all
respondents – were employed in domestic services.63 This reinforces the
finding that domestic work provides a major source of employment for
migrants and, judging by the terminology adopted by respondents, women
migrants in particular.

59 In general see S Naidu & J Lutchman ‘Understanding South Africa’s engagement in

the region: Has the leopard changed its spots?’ & R Rumney & M Pingo ‘Mapping
South Africa‘s trade and investment in the region’ in Human Sciences Research
Council Stability, poverty reduction and South African trade and investment in Southern Africa
A conference presented by the Southern African Regional Poverty Network and the
EU’s CWCI Fund, Pretoria, 29-30 March 2004 http://www.tanzaniagateway.org/
docs/Stability_Poverty_Reduction_and_SA_Trade_Investment_papers_March2004.
pdf (accessed 27 April 2010).
60 S Carciotto ‘Scalabrini Centre – 2012 Annual Census’ Scalabrini Centre of Cape Town
(15 August 2012, unpublished). The assistance of the Scalabrini Centre in providing
this information is gratefully acknowledged.
61 Carciotto (n 60 above) 3.
62 Carciotto (n 60 above) Figure 3.
63 Eg, describing themselves (in order of incidence) as housekeepers, cleaners, nannies,
domestic workers, housemaids, child minders, baby-sitters and au pairs: breakdown of
job categories provided by the Scalabrini Centre (n 60 above).
228 Chapter 6

2.6 Gender and migration in South Africa

One feature of large-scale redundancies and forced displacement across the

African continent has been an increase in the number of African women
who are dispensing with traditional restrictions to take over as their
families’ main breadwinners. SADC migration is also characterised by ‘an
increased feminization of cross-border migration’.64 Although some
women move to other countries within the African diaspora, South Africa
remains the major destination for women from neighbouring countries.65
For many, domestic work offers the only escape route out of poverty as the
majority are from poor households and are often further disadvantaged by
low levels of education and few marketable skills.66 Other factors are the
ease of access to informal domestic employment, the normalcy of the
sector within South Africa and its association to what continues to be
perceived as ‘women’s work’.67 For example, the 2001 census revealed
that 42 per cent of black women from SADC countries who lived in
Johannesburg were working in private households.68 This pattern
distinctly changes the nature of the sector from one defined by apartheid
labour laws and practices of employing South African women to one that
reflects the impact of the wider regional economy on household labour as
a destination occupation for women.

By caring for the homes and children of those driving the South
African economy, migrant women workers are contributing to the
country’s economic growth and, at the same time, its dominance within
the region. This, however, does not make migrant domestic workers
complicit in the consequences of globalisation any more than workers
employed by multinational corporations. The point is rather to underline
the extent to which the economies of Southern African have become
integrated through the direct channels of migrant women workers.
Accordingly, this chapter posits a need for solutions to this wider
migration reality. Rather than seeking to remove migrant workers from the
economic growth points to which they have relocated, I argue that
bringing the legal framework in line with the economic and human

64 Olivier (n 57 above) 125.

65 L Waller ‘Irregular migration to South Africa during the first ten years of democracy’
Southern African Migration Project, Migration Policy Brief No 19 Southern African
Migration Project (2006) Para 3.5.
66 WIEGO ‘Informal workers in focus: Domestic workers’ http://www.wiego.org/
publications/FactSheets/WIEGO_Domestic_Workers.pdf (accessed 17 March 2010).
67 The growing supply of women migrant workers includes large numbers of children,
some of whom have been trafficked and are virtually slaves in private households: B
Ramamurthy ‘International labour migrants: Unsung heroes of globalisation’ Swedish
International Development Cooperation Agency (SIDA) Studies No 8 (2003) 8.
68 Census 2001 as cited in S Peberdy & N Dinat ‘Migration and domestic workers:
Worlds of work, health and mobility in Johannesburg’ Southern African Migration
Project, Migration Policy Series No 40 (2005) http://www.queensu.ca/samp/
sampresources/samppublications/policyseries/Acrobat40.pdf (accessed 22 April
2009) 5-6.
 Policies, protections and practices for migrant domestic workers in South Africa 229

realities on the ground should be the objective as a basis for viable

solutions. In doing so, given the particular dynamics of gender migration
within Southern Africa, policies and practices must take into consideration
the particular needs of the women who serve as the predominant labour
force for the household sector.

2.7 An overview of domestic work in South Africa

While Statistics South Africa put the number of domestic workers in South
Africa at 861 000 at the end of 2012,69 other estimates suggest that well
over a million workers are employed as domestic workers, gardeners,
child-minders (including drivers of children) and those who look after the
sick, aged or disabled in private homes.70 According to the 2013 Annual
Survey of the South African Institute of Race Relations, the number of
domestic workers in South Africa has declined over the past ten years.71
Research has revealed ‘that the decline was all the more significant as the
number of people in South Africa’s middle classes had increased
substantially over the same period’.72 This suggests that South Africa’s
middle classes are less inclined to employ domestic workers than was the
case in past decades. To date, however, the explanations for these trends
have not yet been investigated thoroughly. It has been suggested that

stricter labour law and minimum wage regulations, security concerns, smaller
homes and properties, racial and cultural shifts in the social attitudes of the
new middle class, increasing administered prices such as electricity, rates, and
fuel bills, and increased household debt levels may all have contributed to the
phenomenon.73

While these figures offer a macro view of the sector, they fail to capture
migrant representation, which is likely to be underestimated given the lack
of structures to count informal workers. Thus, the sector may actually be
on the increase due to migrant workers simply not being included in the
data. These questions illustrate the need for more comprehensive
investigation of the representation of migrant domestic workers within
South Africa.

To this should be added that many South African-born domestic

workers are also migrant workers due to the heritage of apartheid
economic structures and racial legislation that forced domestic workers to
live separately from their families in suburban maids’ quarters or

69 Statistics SA Quarterly Labour Force Survey (Quarter 4, 2012) Table D.

70 Press release ‘Disappearing domestic workers’ issued by the South African Institute of
Race Relations (SAIRR) (31 January 2013) http://www.sairr.org.za/media/media-
releases/Disappearing%20domestic%20workers. pdf/view (accessed 30 April 2013).
71 Press release (n 70 above); and see the Appendix to this chapter.
72 Press release (n 70 above).
73 G Alexander, SAIIR researcher, quoted in Press Release (n 70 above).
230 Chapter 6

‘backrooms’.74 The apartheid system dictated that many domestic

workers’ families remain in ‘homelands’ far from their places of
employment, as their presence in the cities was illegal. Thus, whilst the
mining sector and its single-sex hostels have been well-documented,
migrancy in respect of domestic work requires extensive research to
capture the trends within South Africa at this point where the forces of
globalisation intersect with twenty years of a democratic governance
system.75

3 Migration, domestic work and the law: An

overview of existing legal frameworks
Legal policies and protections have not yet fully responded to the increased
level of service labour demanded by the global economy. The marginalised
position of domestic workers makes the development of legal frameworks
of protections that much more urgent in respect of migrant populations in
this sector. This part of the chapter reviews the protections for domestic
workers at the international, regional and national level in South Africa.
From here, I set the foundation for examining applied practices and gaps
in accessing the protection offered by existing legislation.

3.1 International law on the protection of migrant workers

The 2003 report by the Special Rapporteur of the UN Commission on

Human Rights stressed that the human rights of all migrant workers and
members of their families are protected by core international human rights
treaties, which do not distinguish between citizens and non-citizens,
including those in an irregular situation:76

Based on a review of international human rights law, the Special Rapporteur

has concluded that all persons should by virtue of their essential humanity
enjoy all human rights unless exceptional distinctions, for example, between
citizens and non-citizens, serve a legitimate State objective and are
proportional to the achievement of that objective.

The existence of a ‘legitimate State objective’ and the adoption of means

‘proportional to the achievement of that objective’ as criteria that may
justify distinctions between citizens and non-citizens is crucial.

74 M Motala ‘Domestic workers in South Africa: Its modern day slavery’ The South
African Civil Society Information Service 3 May 2010 http://www.sacsis.org.za/site/
article/473.1 (accessed 7 March 2013).
75 Motala (n 74 above).
76 UN Economic and Social Council The rights of non-citizens Final report of the Special
Rapporteur, D Weissbrodt (26 May 2003) 2. See also Committee on the Elimination of
Racial Discrimination (CERD) General Recommendation No 30: Discrimination Against
Non-Citizens 1 October 2004 http://www.unhchr.ch/tbs/doc.nsf/0/e3980a673769e
229c1256f8d0057cd3d (accessed 3 May 2013) paras 2-3.
 Policies, protections and practices for migrant domestic workers in South Africa 231

Circumstances where the denial of human rights protection to non-citizens

could be justified in terms of these criteria are practically excluded. The
principles of equal treatment and non-discrimination are embodied in
numerous international human rights treaties, including the International
Covenant on Civil and Political Rights (ICCPR), the International
Covenant on Economic, Social and Cultural Rights (ICESCR), the
International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD), the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW), the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (CAT), and the Convention on the Rights of the Child (CRC).
These treaties promote migrants’ enjoyment of their human rights,
regardless of geographic location or citizenship status. From an ideological
perspective, the notion of ‘essential humanity’ is central to the
consideration of legislative protection for migrant domestic workers. In the
case of South Africa, this holds particular resonance within the guiding
constitutional commitment to human rights and social equality.77

Notably, these treaties demonstrate considerably higher ratification

records than the International Convention on the Protection of the Rights
of All Migrant Workers and Members of Their Families (ICRMW).78
Although it only offers limited protection – particularly of trade union
rights, the right to health and the right to adequate housing – the ICRMW
seeks to extend to irregular migrant workers and members of their families
rights that were previously limited to legal migrants. Article 25 resonates
with Article 7 of the ICESCR, which stresses the ‘right of everyone to the
enjoyment of just and favourable conditions of work’ and numerous ILO
Conventions that disregard the legal status of the workers involved. More
crucially, the ICRMW enjoins states to afford equal treatment in respect of
remuneration and other terms and conditions of work to all workers in
their territories. Both the ICCPR and the ICESCR further protect the right
of workers irrespective of nationality and legal status to form or join trade
unions, a right which is bolstered by the right to organise in ILO
Convention 87 on Freedom of Association and Protection of the Right to
Organise.79

Given the increasing need for people to seek work in other countries,
the rapid growth in illegal immigration and the ensuing tensions between
internal and external forces that ‘accentuate further the prejudices,

77 As discussed in Chapter 2 (above).

78 See http://www2.ohchr.org/english/bodies/cmw/cmw.htm (accessed 3 May 2013).
Arts 8-35 of the Convention applies to all migrant workers and their families, while
arts 36-63 apply only to documented migrant workers and their families.
79 See http://www.ilo.org/dyn/normlex/en/f ?p=1000:12100:0::NO::P12100_ILO_CO
DE:C087 (accessed 3 May 2013). See also ILO Report of the Director-General
‘Freedom of association in practice: Lessons learned’ International Labour
Conference, 97th Session, 2008 http://www.ilo.org/wcmsp5/groups/public/---dg
reports/---dcomm/documents/publication/wcms_096122.pdf (accessed 3 May 2013)
paras 228-241.
232 Chapter 6

xenophobia and racism of which migrants are often the victims’80 have
presented a central consideration for the ILO in terms of balancing
standard-setting with the pragmatic dimensions of policy implementation.
Through a series of binding and non-binding treaties the ILO has built a
collection of international labour standards that undergird protection of all
workers regardless of their status. For instance, the Migrant Workers
(Supplementary Provisions) Convention of 1975 (No 143), an offshoot of
the revised Convention concerning Migration for Employment of 1949
(No 97), collectively map out a framework that enjoins states parties to
observe the basic human rights of all migrant workers.81

An inevitable tension exists between the need to protect irregular

migrant workers against exploitation and the objective of governments to
prevent unauthorised entry into their territories. Indeed, it is to be expected
that the latter objective will have been foremost among the state parties
that were the framers and signatories of these conventions. This finds
expression in various international instruments in provisions for the
imposition of sanctions on human smugglers and those who employ
irregular migrants.82 However, this is not to suggest an absolute
contradiction between the two objectives. Although there is a strongly-held
view that protecting the rights of irregular migrants encourages illegal
migration, a countervailing view is that the very protection of their rights
removes the incentive for unscrupulous employers to employ them.83 To
put it differently, both international human rights law and international
labour standards strive to safeguard the rights of migrant workers while
endorsing the right of states to regulate migration and proscribe irregular
migration. This, however, does not address the tension between pressures
compelling migration and regulatory regimes that are oblivious to these
pressures.

In parts 3.3, 3.4 and 4 below we shall look more closely at the South
African situation to see how the dual purposes of establishing protections
and limiting irregular migration flows play out within the national legal
framework.

80 Discovery Health Limited v Commission for Conciliation, Mediation and Arbitration & Others
[2008] 7 BLLR 633 (LC) para 46.
81 For in-depth discussion see O Dupper ‘The human rights of (irregular) migrants: An
international, regional and South African perspective (Pt 1)’ (2010) 2 International
Journal of Social Security and Workers Compensation 61; O Dupper ‘The human rights of
(irregular) migrants: An international, regional and South African perspective (Pt 2)’
(2011) 3 International Journal of Social Security and Workers Compensation 55. See also
part 3.3 of this chapter (below).
82 See, eg, art 68 of ICRMW.
83 See O Dupper (Pt 2) (n 82 above) 57-59.
 Policies, protections and practices for migrant domestic workers in South Africa 233

3.2 International law relating to migrant domestic workers

On 16 June 2011 the International Labour Organisation adopted

Convention 189 on Decent Work for Domestic Workers. After two years
of deliberations, this instrument marked the first set of legal protections for
domestic workers at the international level. Within this standard-setting
process the prevalence of migrant domestic workers emerged as a central
topic in terms of assuring standards that would apply to populations who
work outside their country of origin.

Convention 189 protects migrant domestic workers through a number

of direct references to its scope of coverage. Article 7.3 states that
‘[m]embers shall cooperate with each other to ensure the effective
application of the provisions of this Convention to migrant domestic
workers’. The deliberations surrounding the extension of Convention 189
to undocumented portions of the working population recognised the
realities of the global economy and the specific needs presented by this
category of domestic workers.

Convention 189 also puts in place protections and formal standards for
processes to facilitate the transnational movement of domestic workers. As
Article 8 conveys:84

National laws and regulations shall require migrant domestic workers, who
are recruited in one country to do domestic work in another, to receive a
written job offer or contract of employment containing all relevant details (as
listed in Article 8), prior to the crossing of national borders.

The Convention and its accompanying set of recommendations85 further

recognise the prevalence of international recruitment and placement
services as systematised structures that promote the transnational
movement of domestic workers. As these provisions reflect, such networks
and agencies have increased the movement of workers from supplying to
receiving countries. As a result, international laws are required to monitor
these processes and the ways in which such avenues may contain
loopholes in the fabric of legal protection. In this regard article 17 requires
that migrant domestic workers recruited by an employment agency are
assured of legal protections against abuse in their employment context.
Furthermore, member states are required to specify the conditions under
which migrant domestic workers are entitled to repatriation on the expiry
or termination of the employment contract.86

84 Art 8(1). This does not apply to workers who enjoy freedom of movement for the
purpose of employment under bilateral, regional or multilateral agreements, or within
the framework of regional economic integration areas: art 8(2).
85 Ie, Recommendation 201 (n 5 above).
86 Convention 189, art 8(4).
234 Chapter 6

Domestic workers also fall under the protection of related

international standards for migrant workers. The ILO Convention on
Domestic Work draws attention to standards for migrant workers,
including the Migration for Employment Convention (Revised), 1949 (No
97) and the Migrant Workers (Supplementary Provisions) Convention,
1975 (No 143) as complementary sets of protections specific to this sector.
Furthermore, domestic workers are protected by the United Nations
Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families of 1990, which seeks to promote the human
rights of migrant workers with specific attention to labour practices. On
7 June 2013 South Africa formally ratified the Convention on Domestic
Work, becoming the eighth state to do so. However, it has neither signed
nor ratified any of the related conventions. This places greater emphasis on
an analysis of existing national legislative frameworks to assess the
protections available to migrant populations in South Africa.

3.3 Regional policies: African Union and SADC migration

framework

In June 1991 51 African states signed the Abuja Treaty to establish the
African Economic Community (AEC), which amongst other things urged
member states to adopt employment policies that allow the free movement
of persons within the region. This included facilitating the deployment of
available skilled labour from one member state to others facing shortages
of certain skills as a tool for the promotion of regional cooperation and
integration.87 In June 1995 member states of the SADC agreed on a Draft
Protocol on the Free Movement of Persons in the SADC which proposed
‘a phased-in approach to eventual free movement of persons between
SADC member states, including the right to be employed or seek
employment, and to reside in any member state’.88 Article 2 of the Draft
Protocol defined its ‘main objective’ as being89

in relation to every citizen of a Member State, to confer, promote and protect

(a) the right to enter freely and without a visa the territory of another
Member State for a short visit;
(b) the right to reside in the territory of another Member State; and
(c) the right to establish oneself and work in the territory of another Member
State.

87 For the text of the Treaty see http://www.wipo.int/wipolex/en/other_treaties/

text.jsp?file_id=173333 (accessed 30 April 2013). South Africa signed the Treaty on
10 October 1997.
88 V Williams ‘An overview of migration in the SADC region’ Southern African
Regional Poverty Network (undated) http://www.sarpn.org/documents/d0001212/
williams/index.php (accessed 30 April 2013).
89 For the text of the Draft Protocol, see Southern African Migration Project http://
www.queensu.ca/samp/sampresources/migrationdocuments/documents/1996/draft
protocol.htm#CHAPTER II (accessed 30 April 2013).
 Policies, protections and practices for migrant domestic workers in South Africa 235

The Draft was signed into a Protocol in 2005, but has yet to be ratified by
the requisite number of SADC states to give it the force of law.90

The SADC Treaty91 and the SADC Charter of Fundamental Social

Rights92 between them espouse the right to adequate social protection to
all citizens regardless of their educational qualifications and their location
within the region. But, although the SADC has developed rules on
migration and facilitation of the movement of people, the reception of
foreigners in Botswana, Namibia and South Africa – the major receiving
countries – remains indifferent.93 Given these limitations and gaps in
policy and practice, this chapter will consider possible further steps
towards the development of a regionally harmonised approach to
migration management in Africa and in the SADC region in particular.94

In doing so, an appealing point of reference is the immigration

framework created by the European Union. It is obvious that the
differences between European and African realities as well the respective
migration policies are stark. The EU permits nationals of member
countries to enter freely or live in other member states without the need for
visas or residence permits.95 Under this structure, EU nationals and their
families have the right to live anywhere throughout the Union for three
months, after which they must be working, studying or financially
independent if they wish to stay. EU residents may work in other member
countries, provided they are appropriately qualified. After five years this
right of residence becomes permanent. But, despite the differences, the EU
model for the removal of barriers to movement provides an incentive to
develop policies that will address the realities of labour patterns in sub-
Saharan Africa and its increasing reliance on migrant labour pools, in
forms parallel to trends in the global economy.

90 Following its 1996 Protocol on Trade, the SADC has also agreed on the establishment
of a Free Trade Area to create a regional common market by 2015. For discussion see
SP Hess ‘The new economic geography of a SADC free trade area’ M Econ thesis,
Rhodes University, January 2004 http://eprints.ru.ac.za/65/1/HESS-MASTERS.pdf
(accessed 30 April 2013).
91 See http://www.sadc.int/files/9113/5292/9434/SADC_Treaty.pdf (accessed 30
April 2013).
92 See http://www.lawschool.cornell.edu/womenandjustice/upload/SADC-Charter-of-
Fundamental-Social-Rights-in-SADC.pdf (accessed 30 April 2013).
93 For critical analysis see A Makochekanwa & J Maringwa ‘Increasing temporary
movement of natural persons in the SADC region: What should be done?’ Report
prepared for the University of Mauritius, Services Sector Development in SADC and
ESA Region Project (December 2009) http://saso.sadc.int/files/ 4313/5359/4565/
Increasing_Temporary_Movement_in_SADC_by_TIPS_2009.pdf (accessed 30 April
2013).
94 See A Saurombe ‘The role of SADC institutions in implementing SADC treaty
provisions dealing with regional integration’ (2012) 15 Potchefstroom Electronic Law
Journal 29 www.nwu.ac.za/af/web_fm/send/58118 (accessed 29 June 2013).
95 In general, see Summaries of EU Legislation ‘Free movement of persons, asylum and
immigration’ http://europa.eu/legislation_summaries/justice_freedom_security/free
_movement_of_persons_asylum_immigration/ (accessed 30 April 2013).
236 Chapter 6

3.4 South African immigration law

South Africa’s post-apartheid immigration policy has ‘mostly been

exclusionary, based on a strongly protectionist and territorial vision’.96
The new government’s resolve to keep out immigrants may be traced to the
Aliens Control Act of 1991, which was constructed during the transition
from apartheid to democracy as a barrier to immigration into the country.
Peberdy describes the post-1994 policy as follows:97

The ways that the new state used and amended the 1991 Act and its
replacement, the Immigration Act of 2002 (as amended in 2004), indicate its
commitment to the exclusionary principles on which South African
immigration legislation has always rested. However, there was a shift in
approach in the early 2000s to make policy more responsive to ‘South Africa’s
skills and investment needs’ and to engage with xenophobia. … [But the]
thrust of policy remains largely exclusionary. African immigrants and
migrants, documented and undocumented, seem to have been the most
affected.

South Africa thus faces a quandary in dealing with migration. The

Preamble to the Immigration Act98 recognises the need for migrant labour,
stating the aim of enabling ‘the South African economy [to] have access to
the full measure of needed contributions by foreigners’. Immediately
following this statement, however, the Preamble adds that ‘the
contribution of foreigners [must] not adversely impact on existing labour
standards and the rights and expectations of South African workers’.
Section 32 states that ‘illegal foreigner[s]’ must ‘depart’ and enjoins
immigration officials to deport ‘any illegal foreigner’ found in the
Republic. The Act then proceeds to regulate the conditions under which
non-South Africans may enter in the country and avoid deportation.

The essential requirement is to obtain a temporary or permanent

residence permit. Migrants, as opposed to immigrants, may apply for one
of 13 different kinds of temporary permits, ranging from visitors’ permits
to work permits.99 To obtain any of these permits, applicants must go
through a rigorous screening process that systematically disadvantages
‘unskilled’ migrants. In the case of work permits, potential employers of
non-South Africans are required to demonstrate that ‘despite diligent
search’ they are ‘unable to employ a person in the Republic with
qualifications or skills and experience equivalent to those of the
applicant’.100 Low-skilled migrant workers are thus likely to fail at the first

96 ‘South Africa/Zimbabwe: South Africa’s Immigrant Housemaids—A Desperate

Tribe’ The Zimbabwean 11 September 2010 http://www.peacewomen.org/news_
article.php?id=1848&type=news (accessed 3 May 2013).
97 Peberdy (n 14 above) 148.
98 Immigration Act 13 of 2002.
99 Immigration Act, secs 11-24.
100 Immigration Act, sec 19(2)(a).
 Policies, protections and practices for migrant domestic workers in South Africa 237

hurdle in the application process. Furthermore, temporary residence

permits are issued on condition that the non-citizen is not or does not
become a ‘prohibited or an undesirable person’101 and has sufficient
financial means to survive while in South Africa.102 The economic
resource bases of the vast majority of migrants seeking domestic work
would preclude their entrance on this basis alone.

At the same time the post-1994 government has placed international

law and international human rights standards at the heart of the new
democratic order. The Immigration Act was intended to strike a balance
between exclusion and compliance with international law as well as the
Constitution’s emphasis on human rights.103 State agencies are required to
comply with international standards when interpreting domestic law and
also, where necessary, as a source of substantive law.104 As discussed
below, the state is obliged to grant anyone who appears at its borders the
right to apply for asylum in the country.105 Since refugees in South Africa
are not sequestered in camps, asylum-seekers are expected to survive
without state assistance and are allowed to work or study in South Africa
subject to conditions determined by the Standing Committee for Refugee
Affairs.106

Yet it is argued that, taken as a whole, South African laws do not

adequately meet international standards as embodied in the ILO’s decent
work agenda or the transformative values of the Constitution,107 nor do
they protect migrant workers from exploitative employers. Unskilled and
semi-skilled workers, for the reasons noted above, face a structural
disadvantage if not insuperable barriers to obtaining the protection of the
law. In practice, most domestic workers and others without ‘scarce skills’
must resort to crossing borders and seek employment without a work
permit if they hope to escape the conditions that drove them from their
countries of origin.

This represents a deep gulf between policy and practice. The

widespread migration patterns central to the restructuring of the global

101 Immigration Act, sec 10(4).

102 Reg 7(8)(c)(ii) of the Immigration Regulations (GNR 616 of 27 June 2005) read with
sec 10(5) of the Act.
103 See paras (l) to (p) of the Preamble to the Act.
104 Secs 232 and 233 of the Constitution domesticate international customary law and
require the judiciary to defer to international legal principles when interpreting local
laws.
105 For the forbidding procedure governing applications for refugee status, see Chapter 3
of the Refugees Act 130 of 1998 read with sec 23 of the Immigration Act.
106 In terms of sec 11 of the Refugees Act. For more information see Department of Home
Affairs – Refugee Status & Asylum http://www.home-affairs.gov.za/index.php/
refugee-status-asylum (accessed 30 April 2013). The website informs asylum-seekers
that ‘South Africa does not have any refugee camps so asylum seekers and refugees live
mainly in urban regions and survive largely without assistance’, but offers no
information as to the right to seek work in order to survive.
107 As discussed in Chapter 2 and part 4 of Chapter 3 (above).
238 Chapter 6

economy increase the traversing of borders within the African continent,

compelling millions to do so without legal authorisation. In South Africa,
the largely informal nature of domestic work identifies it as a destination
employment sector. Yet national migration laws fail to recognise the
realities of increased labour flows, thereby creating conditions that leave
migrant workers more vulnerable and legal frameworks less meaningful as
economic migrants, asylum seekers and refugees flow into the country at
increasingly rapid levels.

3.5 Refugee law

The extent of the refugee presence in South Africa and the protection
extended to refugees by international law have already been noted.108
Since 1994, South Africa has acceded to a number of international human
rights instruments that censure violation of people’s freedoms and protect
the rights of refugee immigrants. These mechanisms include the United
Nations Refugee Convention of 1951,109 the 1967 Protocol Relating to the
Status of Refugees110 and the I969 Organisation of African Unity
Convention Governing the Specific Aspects of Refugee Problems in
Africa.111 The Refugee Convention imposes an obligation on states to
offer asylum to anyone who can show that they have a well-founded fear
of persecution on account of their ‘race, religion, nationality, membership
of a particular social group or political opinion’ if sent back home. In
addition, South Africa is bound by the international customary law
principle of non-refoulement112 of refugees to a state where they are likely to
face persecution or inhuman and degrading punishment. This was
accepted by the High Court in Kabuika & Another v Minister of Home Affairs
& Others113 and the Constitutional Court in Mohamed & Another v President
of the Republic of South Africa & Others.114 The principle is now codified in
section 2 of the Refugees Act,115 which states:

Notwithstanding any provision of this Act or any other law to the contrary,
no person may be refused entry into the Republic, expelled, extradited or
returned to any other country or be subject to any similar measure, if as a
result of such refusal, expulsion, extradition, return or other measure, such
person is compelled to return to or remain in a country where –

108 See parts 1 and 2.1 of this chapter (above).

109 UNHCR ‘Convention Relating to the Status of Refugees’ http://www.unhcr.org/
pages/49da0e466.html (accessed 3 May 2013).
110 UNHCR ‘Protocol Relating to the Status of Refugees’ http://www.unhcr.org/pages/
49da0e466.html (accessed 29 June 2013).
111 See http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=3ae6b36018 (access-
ed 3 May 2013).
112 The literal meaning is ‘not driving back’.
113 1997 (4) SA 341 (C).
114 2001 (7) BCLR 685 (CC). See also Arse v Minister of Home Affairs & Others 2010 (7)
BCLR 640 (SCA).
115 Refugees Act 130 of 1998.
 Policies, protections and practices for migrant domestic workers in South Africa 239

(a) he or she may be subjected to persecution on account of his or her race,

religion, nationality, political opinion or membership of a particular social
group; or
(b) his or her life, physical safety or freedom would be threatened on account
of external aggression, occupation, foreign domination or other events
seriously disturbing or disrupting public order in either part or the whole of
that country.

Section 27(b) of the Refugees Act goes on to state that ‘a refugee enjoys full
legal protection, which includes the rights set out in Chapter 2 of the
Constitution’. These provisions draw a distinct line between refugees and
economic migrants in terms of legal protections. Because these protections
are only applicable to registered refugees, the majority of migrants from
African countries who stream across South Africa’s porous borders to
escape economic and political hardship but do not apply for or cannot
establish refugee status remain outside the scope of legal protections. As
such they face an uncertain future as they are prohibited from entering into
employment and, if they do, are vulnerable to exploitation. Furthermore,
they do not have access to vital social security rights, which often forces
undocumented migrants to lead lives of penury and permanent insecurity
in unregulated economic activity. But, as we shall see below, the courts
have in a number of cases upheld certain basic rights of migrant workers
despite their undocumented status.

4 Legal protection of migrant domestic

workers: The Immigration Act meets
domestic labour laws
The South African government ratified Convention 189 on 7 June 2013.
This international instrument specifically extends protections to migrant
domestic workers and is the most directly relevant set of standards to
recognise the intersecting dimensions of both informal work and migrant
status.116 Specific provisions to give effect to it, however, are not yet in
place. As a result, the rules applicable to migrant domestic workers are still
found in the Immigration Act, the Refugees Act and the labour legislation
discussed above.

4.1 Accessing legal protection for migrant domestic workers

In terms of South Africa’s existing immigration law migrant domestic

workers face nearly impossible barriers in terms of accessing a legal right
to work. In practice, the only basis on which a non-South African who
does not possess the requisite ‘qualifications or skills and experience’ can

116 As discussed in part 2.1 of this chapter (above).

240 Chapter 6

obtain the right to work in South Africa is if he or she qualifies for refugee
status117 and succeeds in obtaining asylum in terms of the Refugees
Act.118 We have seen that any non-South African who is employed
without possessing these qualifications is an ‘illegal foreigner’, as
defined,119 and section 32(2) succinctly states that ‘[a]ny illegal foreigner
shall be deported’. A similar barrier prevents migrant domestic workers
from obtaining permanent residence status. Furthermore, employers of
domestic workers are not eligible to obtain corporate work permits in terms
of section 21 of the Immigration Act.

The effect is that the majority of aspiring immigrants and migrants to

South Africa from countries to the north seeking work as domestic workers
would fail at the first hurdle should they apply for a work permit. This
means that they live under the perpetual threat of deportation or,
sometimes more immediately, persecution on the basis of their nationality.
The rationale for this state of affairs is the argument that the South Africa
labour pool provides a sufficient supply of domestic workers. Therefore, an
influx of non-South Africans competing for those same jobs would exert
more pressure on an already over-supplied segment of the labour market.
These market forces thus form the basis for the exclusionary stance of
South Africa’s immigration policies. Against this, I argue that these
policies reflect an ultimately unrealistic view of a complex labour and
migration exchange system within the broader SADC and continental
political economy, which calls for a far more nuanced response based on
the values of transformative constitutionalism and decent work, as
discussed throughout this book.120

These gaps between policy and the realities of the labour market
illustrate a number of challenges bound up with the migration of domestic
workers and other workers in Southern Africa. While migrant workers
contribute to the South African economy, and while their remittances to
their countries of origin are important both to their dependants and to the
economies of those countries, they are exposed to conditions that severely
infringe their fundamental rights due to their lack of legal status (it will be
seen below that the courts are alive to this danger). Migrant domestic
workers are especially vulnerable to exploitation and abuse because of
their isolation in private homes and the increased power that an employer
holds over an employee when legal status is out of reach. Over and above
this, lack of legal status prevents undocumented workers from approaching

117 Ie, ‘owing to a well-founded fear of being persecuted by reason of his or her race, tribe,
religion, nationality, political opinion or membership of a particular social group’:
Refugees Act, sec 3(a).
118 Refugees Act, sec 3, read with secs 21 and 27. Economic need, clearly, does not qualify
a person for refugee status.
119 Sec 1 defines ‘illegal foreigner’ as ‘a foreigner who is in the Republic in contravention
of the Refugees Act 130 of 1998’.
120 These concepts are discussed in more detail in Chapter 2 (above).
 Policies, protections and practices for migrant domestic workers in South Africa 241

government institutions for protection when such rights as they do possess

are infringed.

At the same time, migrant domestic workers share all the problems
experienced by domestic workers in general. The need for organisation
and empowerment, therefore, is equally applicable to migrant domestic
workers. Yet few support networks exist in South Africa to cater for the
needs of migrant domestic workers, who are often separated from their
families and wider support networks for long periods. Even joining a trade
union can present serious challenges. The relative abundance of household
labour skills in the country and the fact that an influx of migrant workers
exerts more pressure on an already stretched job market easily translate
into generalised perceptions of competition between local and non-local
job-seekers. Immigrants thus run the risk of encountering xenophobic
resistance both at work and in society at large.121 This anti-immigrant
sentiment materialised in physical attacks on ‘foreigners’ during the 2008
wave of xenophobic violence that shocked the country and the world.122
In this larger context, migrant domestic workers frequently suffer in silence
for fear of approaching the authorities because of real or perceived anti-
migrant tendencies within the police service and government departments.
But all these barriers and deterrents, legal and illegal, have failed to stem
the tide of migrants, and economic migrants in particular, from crossing
South Africa’s borders.

4.2 Labour rights of undocumented migrant workers

Despite the forbidding statutory environment, a number of precedents

have been set by the courts from which migrant domestic workers may
derive certain protections. In Discovery Health123 the Labour Court
recognised the validity of an employment relationship between a South
African employer and a non-South African employee, a Mr Lanzetta, who
did not have a valid work permit. For this reason Lanzetta qualified as an
‘employee’124 and, despite his irregular immigration status, enjoyed

121 Such perceptions are not new. According to a 1997 survey, 37% of South Africans felt
that people from neighbouring countries living in South Africa were a threat to jobs
and the economy, 48% believed they were a criminal threat and 29% believed they
were bringing diseases. Only 25% felt that they had ‘nothing to fear’ from foreign
migrants: R Danso & DA McDonald ‘Writing xenophobia: Immigration and the press
in post-apartheid South Africa’ The Southern African Migration Project, Migration
Policy Series No 9 (2000) 4.
122 See, in general, FB Nyamnjoh Insiders & outsiders: Citizenship and xenophobia in
contemporary Southern Africa (2006); JP Misago et al Towards tolerance, law, and dignity:
Addressing violence against foreign nationals in South Africa Report, IOM Regional Office
for Southern Africa, February (2009) http://www.migration.org.za/sites/default/
files/reports/2009/Addressing_Violence_against_Foreign_Nationals_IOM.pdf
(accessed 3 May 2013).
123 n 80 above.
124 As defined in sec 213 of the LRA.
242 Chapter 6

protection of his right to fair labour practices in terms of section 23(1) of

the Constitution.

This case thus established the principle that the protection of

employees’ rights must not depend on the existence of a valid contract of
employment or, in the case of migrants, possession of a valid work permit.
Had this been the case, Judge van Niekerk observed, an unscrupulous
employer ‘might employ a foreign national and at the end of the payment
period, simply refuse to pay her the remuneration due, on the basis of the
invalidity of the contract’.125 Such an employer may also require the
employee to work longer than the statutory maximum hours of work or
deny her the required time off or rights to annual leave, sick leave and
family responsibility leave,126 knowing that she would be deprived of a
remedy due to the illegal circumstances under which she performs her
work.127 The judgment continued:

This is particularly so when persons without the required authorisation accept

work in circumstances where their life choices may be limited and where they
are powerless (on account of their unauthorised engagement) to initiate any
right of recourse against those who engage them.128

The protection of section 23 of the Constitution, accordingly, ‘extends

potentially to other [than employment] contracts, relationships and
arrangements in terms of which a person performs work’.129

This judgment speaks directly to the situation of undocumented

migrant domestic workers. Specific reference was made to the ILO
Migrant Workers (Supplementary Provisions) Convention, which
emphasises the protection of the basic human rights of all migrant
workers.130 However, the protection of migrant workers has to be
interpreted in the context of clandestine immigration and the need for
sanctions against illegal immigrants and the people who employ them.131
As a result, international standards like the above-mentioned Convention
‘attempt to resolve a tension between the right of states to protect their
labour markets and the protection of the fundamental rights of those, who

125 Discovery Health (n 80 above) para 30.

126 The relevant minimum rights are laid down in the Basic Conditions of Employment
Act 75 of 1997 (BCEA). For an overview of the most essential rights and compliance
therewith, see part 5.2.8 of Chapter 3 (above).
127 See also C Bosch ‘Can unauthorized workers be regarded as employees for the
purposes of the Labour Relations Act?’ (2006) 27 Industrial Law Journal 1342.
128 Discovery Health (n 80 above) para 30. Bosch (n 127 above) notes that undocumented
migrants’ status has ‘historically been exploited to their detriment as they are reluctant
to use protective mechanisms for fear of secondary victimization at the hands of
authorities’.
129 Para 41, with reference to the decision of the Constitutional Court in South African
National Defence Union v Minister of Defence & Another 1999 (4) SA 469 (CC), where it
was held that soldiers, even though not ‘employees’, are ‘workers’ for purposes of sec
23 of the Constitution.
130 Referred to above in the context of documented migrants.
131 Art 3 of the Migrant Workers (Supplemetary Provisions) Convention 1975 (No 143).
 Policies, protections and practices for migrant domestic workers in South Africa 243

by choice or necessity, seek work in countries other than their own’.132

These guiding principles, it was held, establishes that national legislation
such as the LRA must be interpreted in a manner that recognises the
purpose of protecting the fundamental rights of migrants, including ‘those
who are employed illegally’.133

Related cases underline the primacy of human rights over citizenship

status. In Larbi -Ordam & Others v Members of the Executive Council for
Education & Another (North West Province),134 as noted above, the
Constitutional Court upheld the right to equality of non-South African
citizens and struck down a Department of Education regulation
prohibiting foreign citizens from permanent employment as teachers in
state schools. Similarly, in Kylie v Commission for Conciliation, Mediation and
Arbitration & Others135 the Labour Appeal Court ruled that the illegality of
a sex worker’s job does not deprive him or her of all labour rights or the
right to dignity. The case pointed out that the word ‘everyone’ in section
23(1) of the Constitution must be interpreted broadly.136 According to
Bosch,137 infringing upon undocumented migrants’ labour rights
constitutes a violation of their right to dignity.

The problem, however, does not end there. Recognition of the rights
of migrant workers is essential to the protection of those rights, but does
not guarantee that they will in fact be upheld. Since 1994, as seen above,
the democratic government has entrenched workers’ rights by enacting a
series of labour laws that are fully applicable to domestic workers,
including documented domestic workers. But it has also been noted that,
in practice, those rights are disregarded to a significant extent in the
domestic sector.138 The wider power relations, the overarching context of
unemployment and poverty and lingering perceptions about the informal
nature of this sector create conditions where domestic workers repeatedly
state that such rights are ‘only on paper’.139 Although little empirical data
is available, this is likely to be even truer in the case of undocumented
migrant domestic workers. Around the world such workers are particularly
vulnerable to discrimination and abuse due to ‘the individual employment

132 Discovery Health (n 80 above) para 45.

133 Discovery Health (n 80 above) para 47.
134 1998 (1) SA 745 (CC).
135 (2010) 31 ILJ 1600 (LAC).
136 Para 17. Sec 23(1) states: ‘Everyone has the right to fair labour practices’. In Khosa &
Others v Minister of Social Development & Others; Mahlaule and Another v Minister of Social
Development 2004 (6) BCLR 569 (CC) para 111, Ngcobo J explained that ‘[t]he word
‘everyone’ is a term of general import and unrestricted meaning. It means what it
conveys’.
137 Bosch (n 127 above) 1342 & 1352. He argues (at 1353) that allowing unauthorised
workers access to remedies under labour legislation ‘empowers them in the sense that
they do not have to put up with oppressive employer conduct, thus bolstering their
sense of dignity’.
138 See Chapter 5 (above) for a discussion of the extent to which the rights of domestic
workers are enforced in the sector as a whole.
139 JN Fish Domestic democracy: At home in South Africa (2006) 155.
244 Chapter 6

relationship, lack of legislative protection, stereotyped thinking about

gender roles and undervaluing of domestic work’.140 Discrimination based
on race, colour and national origin often intersects with discrimination
based on sex.141 There is no reason to believe that matters are significantly
different in South Africa. One response is to say that such workers brought
their misfortunes on themselves by migrating unlawfully in the first place.
This, however, fails to consider the socio-economic realities underlying the
phenomenon of (irregular) migration and offers no basis for resolving it.

4.3 Social security rights of migrant workers142

Immigration law143 and labour law144 are the two sets of laws that operate
most directly in defining the legal space in which migrant domestic
workers find themselves. Both are informed by the Bill of rights; both seek
to bring about positive social and economic development, addressing the
country’s serious skills shortage while protecting the rights and economic
interests of South African nationals and migrants. The question addressed
thus far in this chapter is whether, in combination, these laws serve to
protect the constitutional rights of migrant domestic workers.

For reasons discussed in Chapter 4, however, social security law plays

a role no less vital than labour law in giving effect to the transformative
values of the Constitution and decent work. As Kitty Malherbe
explains:145

Labour law can at best provide protection to workers while they are still
employed (or when unfairly dismissed). It cannot provide protection during
major life course transitions, such as between ‘(unpaid) caring and
employment; unemployment and employment; retirement and employment;
precarious and permanent employment’.146 Like most workers, domestic
workers experience many of these ‘transitions’ and, therefore, a need for
‘second-tier’ protection against loss of income due to social risks such as
unemployment, illness and occupational injuries or events such as maternity.

This part of the chapter considers the extent to which these vital ‘second-
tier’ or social security needs of migrant domestic workers enjoy legal

140 ILO Decent work for domestic workers (2010) para 62.
141 S Olney & R Cholewinski ‘Migrant workers and the right to non-discrimination and
equality’ Paper read at conference on ‘Migrants at work’ Oxford, 22-23 June 2012 23
(cited with the authors’ permission).
142 I am extremely thankful to Kitty Malherbe for her expertise and content knowledge in
the development of this analysis of migrant domestic workers’ social security rights.
143 In particular, the Immigration Act 13 of 2002 and the Refugees Act (discussed in parts
2.4 and 2.5 of this chapter).
144 In particular, the LRA, BCEA and Employment Equity Act 55 of 1998 (EEA)
(discussed in Chapter 3 above).
145 See Chapter 4 (above).
146 P Benjamin ‘Informal work and labour rights in South Africa’ (2008) 29 Industrial Law
Journal 1588.
 Policies, protections and practices for migrant domestic workers in South Africa 245

protection. The starting point is that section 27(1)(c) of the Constitution

states that ‘everyone’ has the right of access ‘to social security, including,
if they are unable to support themselves and their dependants, appropriate
social assistance’. The Constitution, in other words, provides no basis for
distinguishing between South African and non-South African workers. As
far as domestic workers are concerned, it reflects an ethos that those who
contribute their labour to the country’s economic development are equally
entitled to social security protection in times of need.

The two components of social security that are most relevant to

domestic workers are social assistance and social insurance.147 It has been
noted that the Unemployment Insurance Act (UIA)148 was amended in
2003 to extend various forms of social insurance, including maternity
benefits, to domestic workers. This recognises the need of domestic
workers for access a safety net during periods of transition and unexpected
work interruptions as a central component of the social security
framework.

Access to such benefits is particularly pivotal in the lives of migrants,

who face the serious challenges of transient employment and geographic
separation from structures of support. As Fultz and Pieris have stated:149

It has to be recognised that the quality of life of migrant workers is influenced

by the social protection measures available to them, eg whether they are
protected against retrenchments or whether or not the dependants of a
deceased worker would be entitled to death benefits.

With specific reference to the SADC region, Olivier comments that

migrant workers:150

Invariably find themselves in a precarious position, also in relation to social

security. They face seemingly insurmountable difficulties due to the operation
of several legal restrictions, inappropriate and inchoate policies, and the
treatment they generally receive in the host country.

Against this background, let us look firstly at the right of access of migrant
workers to social assistance and, secondly, at their position in relation to
the social insurance scheme created by the UIA.

4.3.1 Access to social assistance

The Constitutional Court has decided that non-South Africans with

147 See part 2 of Chapter 4 (above).

148 Act 63 of 2001.
149 E Fultz with B Pieris ‘The social protection of migrant workers in South Africa’ ILO/
SAMAT Policy Paper No 3, ILO, Harare, 1997.
150 Olivier (n 57 above) 127.
246 Chapter 6

permanent residence status have the right of access to social security.151 At

issue in this case was the question as to whether non-citizens with
permanent residence status had the right to claim certain social assistance
benefits, given that the applicable legislation limited those benefits to
‘citizens’. The court found the exclusion of permanent residents to be
inconsistent with section 27(1)(c) of the Constitution (above) and ruled
that the applicants were entitled to claim the benefits in question. The term
‘everyone’ in section 27, in other words, clearly applies to them.

However, Judge Mokgoro on behalf of the majority of the court went

on to hold as follows:152

I accept that the concern that non-citizens may become a financial burden on
the country is a legitimate one and I accept that there are compelling reasons
why social benefits should not be made available to all who are in South
Africa irrespective of their immigration status. The exclusion of all non-
citizens who are destitute, however, irrespective of their immigration status,
fails to distinguish between those who have become part of our society and
have made their homes in South Africa, and those who have not. It also fails
to distinguish between those who are being supported by sponsors who
arranged their immigration and those who acquired permanent residence
status without having sponsors to whom they could turn in case of need.
It may be reasonable to exclude from the legislative scheme workers who are
citizens of other countries, visitors and illegal residents, who have only a
tenuous link with this country.

Migrant workers without the required documentation, thus, have no right

of access to social security.

It is instructive to view the position adopted in South Africa within the

framework of international law. It has already been noted that the principle
of equal protection of the basic rights of migrant and non-migrant workers
is well-established in international migration law.153 Here we shall look
specifically at a number of ILO Conventions dealing with the right of
migrant workers to social security.154 Not surprisingly, the focus is
primarily on documented migrants. The Migration for Employment
Convention (Revised) 97 of 1949 regulates the manner in which the
migration of persons for employment should take place. In terms of the
Convention, migrants are entitled to equality of treatment with nationals

151 Khosa (n 136 above).

152 Khosa (n 136 above) paras 58-59.
153 See part 2.1 of this chapter (above).
154 The ILO Conventions listed below were selected from the many that mention
migrants’ rights, as they are also the Conventions referred to in the preamble of the
Domestic Workers’ Convention. South Africa has not signed or ratified any of the
international standards mentioned below. The Constitutional Court in Khosa (n 136
above) accordingly made no reference to international law.
 Policies, protections and practices for migrant domestic workers in South Africa 247

in respect of social security.155 The Equality of Treatment (Social Security)

Convention 118 of 1962 likewise provides for equality of treatment under
a ratifying country's social security legislation156 to workers of other
ratifying countries,157 particularly in relation to schemes for the
maintenance of acquired rights and rights in course of acquisition.158

The Migrant Workers (Supplementary Provisions) Convention 143 of

1975 goes further, requiring ratifying states to respect the basic human
rights of all migrants for employment, independently of their status.159 In
terms of this Convention, irregular migrant workers are entitled to
‘equality of treatment for [themselves and their families] in respect of rights
arising out of past employment as regards remuneration, social security
and other benefits’.160 Member states further agree to create national
policies designed to promote and guarantee:

by methods appropriate to national conditions and practice, equality of

opportunity and treatment in respect of employment and occupation, of
social security, of trade union and cultural rights and of individual and
collective freedoms for persons who as migrant workers or as members of
their families are lawfully within its territory.161

Finally, the Domestic Workers Convention 189 of 2011 seeks to protect all
domestic workers.162 The Convention and Recommendation 201 don’t
distinguish between domestic workers on the basis of nationality or
immigration status, and both contain provisions extending specific
protection to migrant domestic workers.163 These provisions, however,
relate to the recruitment of documented domestic workers from other
countries and, in general to the regulation of the conditions of documented
migrants. The situation of undocumented migrant workers is not
addressed.

4.3.2 Access to social insurance

In terms of the various international instruments mentioned above it is

clearly contemplated that migrant workers should enjoy equality of
treatment with nationals in respect of social security and, even if South
Africa has not ratified these treaties, the right of migrant workers to

155 The only exceptions being arrangements for the maintenance of acquired rights and
rights in course of acquisition and special arrangements concerning publicly funded
benefits: art 6(1)(b).
156 Excluding social assistance: art 10.
157 Art 10.
158 Art 7.
159 Art 1.
160 Art 9 (emphasis added).
161 Art 10 (emphasis added).
162 Art 2(1).
163 Arts 8 and 15 of the Convention; arts 20(2), 21(1) and (2), 22, 23 and 26(1) of the
Recommendation.
248 Chapter 6

equality which they embody resonates with the right to equality in section
9 of the Constitution. More specifically, article 14 of Convention 189,
which South Africa is in the process of ratifying, requires member states to
‘ensure that domestic workers enjoy conditions that are not less favourable
than those applicable to workers generally in respect of social security
protection’. It is submitted that the regulation of the two principal forms of
social insurance in South Africa, unemployment insurance164 and
insurance against occupational injuries and diseases,165 is in both cases
contrary to this requirement and, arguably, the principle of equal treatment
contained in international law and in the Constitution.

Although domestic workers were included in the scope of the UIA in

2003, migrant domestic workers are expressly excluded. Section 3(d) of the
Act states that it does not apply to:

persons who enter the Republic for the purpose of carrying out a contract of
service, apprenticeship or learnership within the Republic if upon the
termination thereof the employer is required by law or by the contract of
service, apprenticeship or learnership, as the case may be, or by any other
agreement or undertaking, to repatriate that person, or that person is so
required to leave the Republic, and their employers.

The effect is that migrant domestic workers, including documented

migrants, are placed in a position that is distinctly ‘less favourable than
those applicable to workers generally in respect of social security
protection’.166 The reasons for this exclusion, it has been suggested, are
purely administrative.167 It is difficult to see that such reasons could justify
non-compliance with Convention 189 or an infringement of the right of
migrant workers in general to equal treatment.

In the case of insurance against occupational injuries and diseases the

conflict with international law and the constitutional right to equal
treatment is even more patent: all domestic workers, South African and
non-South African, are excluded from the scope of COIDA.168 It has been
argued above that this exclusion is manifestly unconstitutional and, at the
time of writing, it is understood that an amendment to the Act is under
way.169

164 Regulated by the UIA: see discussion in part 2.1.2 of Chapter 4 (above).
165 Regulated by the Compensation for Occupational Injuries and Diseases Act 130 of
1993 (COIDA); see discussion in part 2.1.1 of Chapter 4 (above).
166 According to Olivier (n 57 above) 135, this ‘keenly affects’ domestic workers from
Mozambique.
167 Olivier (n 57 above) 131, argues that the Unemployment Insurance Fund ‘has no
experience to date of paying benefits outside South Africa’s borders, and only accepts
South African-issued documentation for purposes of paying benefits to foreigners in
South Africa’.
168 The definition of ‘employee’ in sec 1 of COIDA (n 165 above) excludes ‘a domestic
employee employed as such in a private household’.
169 See part 2.1.1 of Chapter 4 (above).
 Policies, protections and practices for migrant domestic workers in South Africa 249

A further complication is the fact that, in terms of section 27(b) of the

Refugees Act, refugees enjoy the rights in the Bill of Rights, including the
right of access to social security. In terms of the Regulations relating to the
application for and payment of social assistance and the requirements or
conditions in respect to eligibility for social assistance, refugees qualify for
the disability grant and the foster child grant.170 Asylum seekers generally
do not qualify for social assistance until their status as refugees is finalised.

4.3.3 The regional dimension

The extent to which labour migration is a phenomenon spanning all

SADC states as countries of origin or destination inevitably raises the need
for a regional approach in giving effect to the right to social security of
domestic and other workers relocating between states. Recommendation
201 advocates the conclusion of bilateral, regional or multilateral
agreements to provide equality of treatment in respect of social security, as
well as access to and preservation or portability of social security
entitlements, to domestic workers covered by such agreements.171

Regional alliances such as the European Union have developed

systems where benefits follow the beneficiaries, wherever they may be in
the region.172 The European Social Charter leaves undocumented
migrants outside its scope.173 However, the Council of Europe’s
Parliamentary Assembly resolved in 2006 that a minimum core of rights
should apply to undocumented migrants, including social protection
through social security where it is ‘necessary to alleviate poverty and
preserve human dignity’,174 compensation for occupational accidents175
and protection for vulnerable groups such as children, single mothers and
older persons.176 In particular, the Assembly took a position that
undocumented migrants who have contributed to social insurance
schemes should be entitled to benefits in terms of those schemes or, at the
very least, reimbursement of their contributions.177

In the SADC context comparable measures, both bilateral and

multilateral, to co-ordinate social security systems so that migrant workers

170 Reg 3(a) and 7(c) GNR 898 in GG 31356 of 22 August 2008.
171 R201 of 2011, Art 20(2).
172 See Regulation (EC) No 987/2009 of the European Parliament and of the Council of
16 September 2009 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONS
LEG:2009R0987:20130108:EN:HTML (accessed 4 May 2013). The 97 articles and
four annexes of the regulation give an indication of the intricacy of the arrangements
that need to be entered into.
173 Art 1, Appendix to the European Social Charter (Revised) http://conventions.coe.int/
Treaty/en/Treaties/Html/163.htm#ANX.
174 Council of Europe Parliamentary Assembly ‘Human rights of irregular migrants’
Resolution 1509 (2006) Para 13.3.
175 Council of Europe (n 174 above) para 13.5.
176 Council of Europe (n 174 above) para 13.7.
177 Council of Europe (n 174 above) para 13.4.
250 Chapter 6

do not lose benefits when they return to their home country are
‘conspicuous by their almost total absence’.178 Olivier describes the effect
as follows:179

Not being linked to the network of bilateral and multilateral conventions on

the coordination of social security, may operate to the disadvantage of citizens
of African countries, when they take up temporary employment or permanent
employment or residence in other African countries, and also when they
return home after working as migrants elsewhere in the continent.

This lack of coordination persists despite provisions in the SADC Code on

Social Security180 which envisage a regional approach to the adoption of
cross-border social security arrangements.181 Article 17.2 of the Code
requires member states to promote a number of core principles aimed at
ensuring that all lawfully employed immigrants are protected. Those most
relevant to migrant domestic workers include:

(a) allowing migrant workers to participate in the social security schemes of

the host country;
(b) ensuring that migrant workers enjoy equal treatment alongside citizens
within the social security system of the host country;
(c) working towards an aggregation of insurance periods and the
maintenance of acquired rights and benefits between similar schemes in
different member states;
(d) facilitating the exportability of benefits; for instance, by ensuring the
payment of benefits in the host country;
(e) identifying the applicable law for the purposes of the implementation of
the principles.

As Dekker notes, a number of factors present very real challenges to

effective implementation of these principles:182

Regional instruments could be problematic, especially for South Africa, in the

SADC context where the social security playing field is uneven. Not all social
security systems are equally well developed or the countries economically and
politically stable. Before improved regional social security protection can be
realised, all parties concerned need to agree on some core values and
minimum standards of social protection.

178 Report of the Committee of Inquiry into Comprehensive Social Security in South
Africa (the Taylor Committee) Department of Social Development (2003) 564;
M Olivier ‘Acceptance of social security in Africa’ Paper presented at ISSA Regional
Conference for Africa, Lusaka, Zambia, 9-12 August 2005 16.
179 Olivier (n 178 above) 15.
180 See http://www.sadc.int/documents-publications/show/1356 (accessed 4 May 2013).
181 Olivier (n 178 above) 16.
182 A Dekker ‘The social protection of non-citizen migrants in South Africa’ (2010) 22
South African Mercantile Law Journal 394.
 Policies, protections and practices for migrant domestic workers in South Africa 251

But even if these principles were to be applied in South Africa as the central
country of destination, it would make no difference to migrant and other
domestic workers to the extent that they remain excluded from social
insurance schemes. The European model of providing minimum benefits
to all migrant workers, including undocumented workers, and equal
treatment to documented migrant workers would address current
anomalies and avoid a situation where the legal and social protections of
local workers and documented migrant workers are undercut by
exploitation of undocumented migrant workers by unscrupulous
employers.183 This comparative model would also put South Africa in a
position to ratify human rights instruments such as the UN International
Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families and the ILO Migrant Workers (Supplementary
Provisions) Convention of 1975.

However, the implementation of socio-economic rights must always

be understood in the broader socio-economic context. The emphasis in
recent years on the extension of social protection to migrant workers is
challenged by the current focus on reduction in public spending184 and
may not remain a priority for long. Olney and Cholewinski express the
following warning:185

The application of the principle of non-discrimination and equality to non-

nationals and migrant workers in particular, while relatively uncontroversial
in the abstract, is being challenged in many parts of the world, especially in
the current global economic crisis as the availability of decent work becomes
increasingly scarce. Certain categories of migrant workers remain at greater
risk of poor working conditions and exploitative treatment, such as those in
an irregular situation, low-skilled temporary workers or migrant domestic
workers.

Given these risks in the larger global context, special focus on the
amendment of national social security legislation to provide migrant
domestic workers with equal access to social security is imperative. The
foundations of such a legislative framework are to be found in the relevant
sections of the Constitution, international and regional instruments on
migration and domestic work, and the supportive case law discussed in this
chapter. The current situation where ‘primacy is given to immigration laws
and policy – at the expense of social security laws and labour laws’186 must
be challenged in order to establish a legislative framework that addresses
human rights as well as regulation of the right to freedom of movement
across national boundaries.

183 See JH Carens ‘The rights of irregular migrants’ (2008) 22(2) Ethics & International
Affairs 176-178.
184 As discussed in part 5 of Chapter 1 (above).
185 Olney & Cholewinski (n 141 above).
186 Olivier (n 57 above) 128.
252 Chapter 6

5 Towards an appropriate regulatory framework for

migrant (domestic) labour in Southern Africa

Migration to South Africa of workers lacking the formal ‘scarce skills’ that
would qualify them to receive work permits, it has been argued, is not
likely to diminish or cease. If this is so, the present exclusionary policy will
ultimately prove to be unsustainable, if it has not already done so. Given
socio-economic realities and the influx of non-citizens into South Africa,
regulatory models designed to address the management rather than the
prevention of labour migration need to take the place of existing policies.
Management of the flow of domestic labour would be a component of such
a model. The development and integration of specific policies and
practices towards this end, however, need to be situated with a larger
context that seeks to utilise legal reform as a mechanism to transform the
socio-economic landscape in accordance with the guiding constitutional
values of human dignity, substantive equality and freedom. As argued in
Chapter 2, this framework of transformative constitutionalism would be
based on active citizenship, including worker empowerment in the social
arena, to promote access to social resources such as housing, education
and social security which are essential aspects of human dignity as well as
the ILO’s decent work agenda.

Particular emphasis was placed in Chapter 2 on the inclusion of non-

citizens of integrated and pluralistic societies, as South Africa has become,
in any vision of social transformation. In criticising the notion of solidarity
confined to South Africans as a basis for transformation, Le Roux makes
the following point:187

It is, of course, possible to address this potential injustice by reformulating a

more inclusive redistributive principle to also include non-citizens as subjects
of socio-economic rights in the South African Constitution.188 Seen from a
representation perspective, however, this would remain an affirmation of the
nation-state as frame of reference. It is also possible to turn the rights claim by
a migrant into a more radical question of political exclusion and thus not to
take the nation-state as a neutral constitutional framework for granted. In the
words of Fraser, this attempt to re-frame the question would be a
transformative strategy.

Transformation, in Fraser’s paradigm, is based on a concept of social

justice involving ‘(cultural) recognition, (socio-economic) redistribution
and (political) representation’ of all, created through an inclusive strategy
of ‘non-reformist reform’.189 Le Roux further points out the particular
significance of migrant domestic work within this paradigm. ‘In the

187 See Chapter 2 above.

188 As was done in Khosa (n 136 above) [footnote in the quoted text].
189 As discussed in part 4.4 of Chapter 2 (above).
 Policies, protections and practices for migrant domestic workers in South Africa 253

domestic work context’, he argues, ‘questions of gender, class and

nationality often overlap and reinforce each other, as the economic
exploitation of foreign or migrant women shows’. He continues:190

We thus argue that social justice within the sphere of domestic work has to
address issues of recognition (dignity, non-discrimination and the social
construction of work and gender; the project must assist domestic workers to
challenge their misrecognition as workers), issues of redistribution (access to
decent work; the project must assist domestic workers to challenge the
injustice of poverty) and representation (not framing and addressing the issue
as a migrant worker issue from the perspective of the state; the project must
assist domestic workers, including undocumented migrants, to challenge the
injustice of misrepresentation and denying them a political voice or a means
of challenging their illegality).

The argument, in other words, is that Fraser’s emphasis on removing

barriers to civic participation should be expanded to migrant workers,
including migrant domestic workers, who are protected by the Bill of
Rights and whose empowerment is central to ensuring that social and legal
rights translate into asserting the freedom, human dignity and equality of
all portions of the population.

Given the circumstances of migration in South Africa, it has to be

recognised that any moves towards the realisation of such a vision will call
for far-reaching adaptation of the present legal framework, including shifts
in policies and practices driven by the values of transformative
constitutionalism. This is so because the existing model of regulating
migration may in some ways be seen as the antithesis of that which the Bill
of Rights might have been expected to foreshadow. It could be compared
to an attempt to dam a river in flood and, when seepages break through the
wall, throwing the contents back into the river in the hope of eventually
managing the growing pace of the water. Leaving aside the metaphor, the
cost of this model in human terms, as outlined in this chapter, cannot be
seen as consistent with the Bill of Rights or its underlying values. Rather,
it embodies a ‘command and control’ view of social governance,191
consistent with traditional practice in South Africa and elsewhere but
clearly at odds with the human rights focus of democratic nation-building.
As this book articulates throughout each chapter, a more responsive
regulatory framework is called for to foster the societal shifts envisioned in
the Constitution, that should amongst other things adopt a more realistic
approach to dealing with questions of citizenship and the increased
presence of migrants in South Africa.

Developing such a framework, it is suggested, will depend on the

simultaneous development of three closely inter-related policy objectives:

190 Part 4.4 of Chapter 2 (above).

191 See discussion in part 4.5 of Chapter 2 (above).
254 Chapter 6

(1) establishing a common labour market incorporating the SADC states

and possibly other states which, together, form the main sources and
destinations of migration in Southern Africa;
(2) redistributing resources from ‘border control’ to integration of markets
and processes regulating the flow of labour; and
(3) reforming the relevant statutes to develop complementary approaches to
domestic labour and immigration laws.

Given the magnitude and complexity of these tasks, the discussion that
follows can only be a starting point and a means of identifying questions
requiring further investigation. But hopefully it will also serve to
contextualise the underlying hypothesis of this chapter: the unsustainable
nature of the existing immigration policy affords the possibility of
developing a more rational alternative.

5.1 Towards a common labour market

Given the integrated nature of the economies of Southern Africa, the

objective of developing a common labour market that will ultimately
create freedom of movement for workers is not unrealistic. South Africa is
by far the largest economy in the southern half of the continent, with its
gross domestic product (GDP) accounting for 64.6 per cent of the total
SADC GDP in 2007, and has the largest labour market.192 During the
nineteenth century its diamond mining and gold mining industries, in
particular, attracted workers from many parts of sub-Saharan Africa and,
indeed, the world, who participated in developing the national economy to
its dominant place within the region. This trend continued to accelerate
during the twentieth century and remains a reality today. As McDonald
puts it: ‘[c]learly, cross-border migration to South Africa from the rest of
the continent is not going to disappear, no matter how draconian a policy
regime is put in place.’193

Migration can only be understood in the context of the geopolitics of

sub-Saharan Africa and, bound up with this, contemporary efforts within
the AU and SADC at promoting economic, political and social
integration.194 Of particular importance as a first step in this direction, it is
suggested, are measures that have been contemplated or already taken
towards the harmonisation of migration policies, legislation and practices
both at a regional level and in the form of bilateral agreements – for

192 R Burgess ‘The Southern African development community’s macroeconomic

convergence program: Initial performance’ Paper prepared for the International
Monetary Fund (15 June 2009) http://www.imf.org/external/pubs/ft/spn/2009/
spn0914. pdf (accessed 5 May 2013).
193 DA McDonald ‘Towards a better understanding of cross-border migration in Southern
Africa’ in DA McDonald (ed) On borders: Perspectives on international migration in
Southern Africa (2000) 1 8.
194 See discussion in part 2.3 of this chapter (above).
 Policies, protections and practices for migrant domestic workers in South Africa 255

example, waiving visa requirements between some SADC member

states.195 This shift towards integration deserves greater policy focus as a
key element of regional development in the longer term. As one research
report has pointed out:196

The development of cohesive and complementary migration policies, rules

and regulations in the Southern African region could lead to significant
advantages in terms of global integration and will have many direct benefits
for Southern African states, such as promoting tourism, providing for better
and more efficient migration management, enhancing security, developing a
common understanding of the rights of migrants and attracting investments.

An alternative way forward based on this perspective is hinted at in the

African Union’s objective of ‘[improving] the management of migration
flows by finding a balance between effective security for legal immigrants,
freedom of the legal movement of persons and the humanitarian obligation
towards those who need protection’.197 The emphasis, however, is still on
‘legal’ migration, thus denying the overwhelming reality of irregular
migration that can never comply with existing legal requirements. To
grapple with this reality requires a very different approach to existing
immigration policy, which Bhagwati has termed a ‘seismic shift’.
Although referring primarily to migration from ‘poor countries’ to ‘rich
countries’, his analysis is thought-provoking also in relation to the massive
migration from the poorer countries in Africa to the relatively affluent
south. Bhagwati explains:198

If it is not possible to effectively restrict illegal immigration, then governments

in the developed countries must turn to policies that will integrate migrants
into their new homes in ways that will minimize the social costs and
maximize the economic benefits. These policies should include children's
education and grants of limited civic rights such as participation in school-
board elections and parent-teacher associations. Governments should also
assist immigrants in settling throughout a country, to avoid depressing wages

195 At present, visa requirements to enter South Africa have been dropped for nationals of
all but three SADC states (Angola, Madagascar and the Democratic Republic of the
Congo). Nationals from other SADC states may freely enter South Africa for visits of
up to 30 days, but may not work: R Downing ‘SA will consider SADC visa waivers if
approached’ Business Day 8 May 2012; T Polzer ‘Population movements in and to
South Africa’ University of the Witwatersrand Forced Migration Studies Programme
(June 2010) http://www.migration.org.za/ites/default/files/reports/2010/FMSP
_Fact_Sheet_Migration_in_SA_June_2010_doc.pdf (accessed 5 May 2013).
196 SAMP, MIDSA and IOM ‘Report and recommendations of the MIDSA workshop on:
The report of the Global Commission on International Migration and the
harmonisation of policies and practices on migration in Southern Africa’ (12-14
December 2005) 5 http://www.sarpn.org.za/documents/d0002024/index.php
(accessed 5 May 2013).
197 AU ‘African common position on migration and development’ Executive Council,
Ninth Ordinary Session, 25-26 June 2006, Banjul, The Gambia para 5.2 http://
www.iom.int/jahia/webdav/shared/shared/mainsite/microsites/rcps/igad/african_
common_position_md.pdf (accessed 5 May 2013).
198 J Bhagwati ‘Borders beyond control’ Council on Foreign Relations (reproduced from
Foreign Affairs January/February 2003) http://www.cfr.org/world/borders-beyond-
control/p5356 (accessed 5 May 2013).
256 Chapter 6

in any one region. Greater development support should be extended to the

illegal migrants' countries of origin to alleviate the poor economic conditions
that propel emigration. And for the less developed countries, there is really no
option but to shift toward a diaspora model.

The shift, in other words, is from the perception of migration as an

‘external’ factor that is potentially harmful to ‘national’ society to a
concept of migration as a natural and inevitable process that is part of the
wider outcome of globalisation. This ideological shift – and its ensuing
practices – involves a reconceptualisation of society from a national frame
of reference to a wider understanding of states as components of a larger
regional, continental or global community. The coming and going of
people across national boundaries then takes on a different meaning:
global migration is essentially no different from migration within a
country. In both cases it represents people repositioning themselves in
relation to economic opportunities and resources that are transnational
rather than national in character, situated in a unified economic landscape
that is only partially fragmented by national boundaries. This economic
reality, as the experience of recent decades has shown, is more influential
in determining the movement of people than historical lines of
compartmentalisation that have become increasingly artificial.

Important research has been carried out in giving more substance to

this perspective in the context of Southern Africa.199 It is necessary to build
on these foundations in order to concretise further measures towards
labour market integration and the broader policy implications that such
measures would have. Until this is done, migrant workers will continue to
pay the price for the discordance between economic realities and migration
policies.

5.2 Shifting the focus from border control to regional labour

market regulation

South Africa’s exclusionary state policies are enforced through

administrative processes that create holding patterns for populations
seeking residency and asylum at an exorbitant cost in both financial and
human terms. At the same time, the state systems that interact with
migrant populations seeking residence often reinforce wider anti-migrant
attitudes. Substantial resources are thus devoted to the futile effort to

199 See, eg, Saurombe (n 94 above); A Saurombe ‘Flexible integration: A viable technique
for the process of deeper integration in the Southern African Development
Community’ (2012) 45 Comparative and International Law Journal of Southern Africa 91;
M Kalaba et al ‘Deepening integration in SADC: South Africa – SADC’s economic
engine’ Regional Integration in Southern Africa Vol 6, a study conducted for the Friedrich
Ebert Foundation (December 2006) http://library.fes.de/pdf-files/bueros/botswana/
04926.pdf (accessed 5 May 2013).
 Policies, protections and practices for migrant domestic workers in South Africa 257

reverse the flow of migration, resulting mainly in visiting hardship on

individuals who happen to be caught while encouraging xenophobia.

As labour tends to move from low employment and low-wage areas to

higher employment and higher-wage areas, South Africa’s position as a
labour destination within the African continent requires policies that
acknowledge the underlying economic and social realities and set out to
deal with the flows of populations seeking refuge, livelihoods and, in some
cases, citizenship rights. The continued emphasis placed on keeping
undocumented migrants out focuses efforts on patrolling borders and
arresting, detaining and deporting those without documentation. The cost
of doing so is considerable. In 1997, for example, South Africa spent
approximately R200 million on deporting 173 000 undocumented
migrants.200 The numbers and the costs have increased since then.201
However, the then Director-General of Home Affairs went on record as
saying that South Africa ‘has no option but to deport illegal immigrants
even if that is to the great expense to the state’.202 These statements capture
larger policy tensions between controlling the influx of migrants and
dealing with the integration of non-citizens throughout society through
assuring social and legal protections.

On the other side of the equation there is evidence that unregulated

migration may have a detrimental impact on sender countries as they lose
some of their most skilled people to countries were incomes are higher.203
In Southern Africa, better employment prospects and higher wage levels in
Botswana, Namibia and South Africa attract skilled as well as unskilled
workers from other countries. Zimbabwe, in particular, has long been

200 H Solomon ‘Contemplating the impact of illegal immigration on the Republic of

South Africa’ Unit for African Studies Working Paper, Centre for International
Political Studies, University of Pretoria (2000) http://www.queensu.ca/samp/
sampresources/migrationdocuments/documents/2000/solomon.htm (accessed 5
May 2013).
201 See T Polzer ‘Discourses on immigration in South Africa: Managing diversity in a new
nation’ in A Plaw (ed) Frontiers of diversity: Essays in contemporary pluralism (2005) 83.
Similarly, in the USA the budget for Customs and Border Protection increased from
$5 billion in 2002 to $9.3 billion in 2008 and that of Immigration and Customs
Enforcement from $2.4 billion in 2002 to $5 billion in 2008. Yet the evidence suggests
that the flow of undocumented migrants around the world is increasing: T Barry
‘Paying the price of the immigration crackdown’ Americas Program, 16 May 2008
http://www.cipamericas.org/archives/1448 (accessed 6 May 2013). A 19% budget
increase was requested for 2009: see Solomon (n 201 above). On measures being taken
in the European Union to combat illegal immigration, see MJ Fouse ‘An assessment of
European Union immigration cooperation: The Tampere Program, the determinants
of progress, and prospects for future European Union immigration cooperation’ Paper
prepared for the 2004 Annual Meeting of the American Political Science Association,
2-5 September 2004 12-13 http://citation.allacademic.com/meta/p_mla_apa_re
search_citation/0/5/8/9/5/p58954_index.html?phpsessid=28e52392fdae47386fba4f
6be1368b01 (accessed 6 May 2013).
202 Cited in 'Illegal aliens will be deported at any cost' Independent Online 30 April 2002
http://www.iol.co.za/news/south-africa/illegal-aliens-will-be-deported-at-any-cost1.
85812?ot=inmsa.ArticlePrintPageLayout.ot (accessed 5 May 2013).
203 D Tevera Migration from Zimbabwe: Numbers, needs, and policy options Centre for
Development and Enterprise (2008) 19.
258 Chapter 6

losing trained health personnel and employees in sectors that are crucial to
economic and social development. Tevera, citing a 2003 study, estimates
that ‘more than 80 per cent of doctors, nurses, pharmacists, radiologists
and therapists trained since 1980 had left the country, and that by 2003
Zimbabwe had lost more than 2 100 medical doctors and 1 950 certified
nurses, mostly to South Africa, Botswana, Namibia, Britain, and
Australia’.204 This wider ‘brain drain’ resulting from the emigration of
skilled populations has a simultaneous impact on migrant labour pools
considered ‘unskilled’, which is not reflected adequately in the applicable
legislation.

The fact that domestic workers are mostly drawn from less educated
sections of the population does not mean that the demand for migrant
domestic workers in South Africa has no relevance to the brain drain. An
OECD study sums up both sides of a negative equation:205

The area most affected by high emigration rates of the highly educated
population is sub-Saharan Africa. The potential costs can be great: brain drain
means loss of skills for the source country, loss of ideas and innovation, loss of
the nation’s investment in education and loss of tax revenues, but most
importantly, perhaps, the loss of critical services in the health and education
sectors. ‘Brain overflow’ in receiving countries can lead to misuse and
subsequent downgrading of professional skills of migrants.

The extent of such downgrading, and the extent to which domestic work
is performed by persons with professional or technical skills, needs more
investigation.206 The legal position, however, is clear. Skilled migrants
who are unable to find employment in their fields of expertise will, by the
same token, be without work permits. As such they will be deemed ‘illegal
foreigners’ and faced with the choice between returning to their countries
of origin, which they left due to a lack of opportunities, or seeking less
skilled work in South Africa. In practice it appears that the latter, including
domestic work, is often the more preferable option. For educated women,
in some cases, domestic work may be the only one.

Further controversy surrounds the policy objective of ensuring that the

only migrants permitted to enter South Africa will be those who can
produce goods and services that are more highly valued than the goods and
services they consume. Some have argued that migrants, including

204 Tevera (n 203 above) 42.

205 OECD Development Centre Policy coherence for development: Migration and developing
countries (2007) 65. A read-only copy of the book is available at http://www.
keepeek.com/Digital-Asset-Management/oecd/development/policy-coherence-for-d
evelopment- 2007_9789264026100-en (accessed 6 May 2013).
206 A 2009 survey indicated that between 6.8% and 8.5% of domestic worker respondents
had completed 12 years of education: African Response ‘Domestic workers survey
prepared for the Social Law Project at the University of the Western Cape’ (2009,
unpublished). It is not known how many of these workers were of non-South African
origin.
 Policies, protections and practices for migrant domestic workers in South Africa 259

undocumented migrants, are often highly qualified and bring valuable

entrepreneurial and other skills into the country.207 Others contend that
undocumented migrants are overwhelmingly unskilled, residing in
informal settlements and constituting a net drain on health care and other
resources.208

More research is needed on these and other aspects of the role played
by migrant workers in the economy in order to arrive at the necessary
understanding of the socio-economic impact of migration and its role
within the regional labour market. Within South Africa, a balanced
assessment of the contributions migrants and migrant labour make to the
national economy would afford a more realistic approach to managing the
trans-border population flows. Such an analysis would put the one-sided
emphasis on the cost of migration in terms of education, health care and
social support facilities into perspective.

The African Common Position on Migration and Development209

captured the need for a movement beyond border control management by
expressing concern ‘that the emphasis on addressing illegal or irregular
migration has been only on security considerations rather than on broader
development frameworks and on mainstreaming migration in develop-
ment strategies’. Such strategies, for example, would include policies to
regulate the movement of capital, which could raise wages in labour-
exporting countries and affect the trend of migration. In this paradigm,
rather than managing migration by means of immigration policies and
border controls, ideological and applied responses would shift to managing
the integration of people from different places into new economic and
social combinations, with a view to enabling new synergies to come into
existence.

Points of departure for such an approach are to be found in various

policy documents. Heads of state and government of the African Union,
for example, have adopted a declaration committing themselves to ‘place
employment creation as an explicit and central objective of our economic
and social policies at national, regional and continental levels’.210 More
specific proposals have been made, including to ‘[e]stablish regional labour
exchanges aimed at facilitating the employment of available human
resources of one Member State in other Member States where there are
shortages of skilled labour’.211 Economic activities coordinated on a

207 Cf, M Reitzes ‘Towards a human rights-based approach to immigration policy in

South and Southern Africa’ SAMP (January 1997) http://www.queensu.ca/samp/
transform/Reitzes.htm (accessed 5 May 2013).
208 Cf, Solomon (n 200 above).
209 Adopted by the Executive Council of the African Union (June 2006) http://
www.unhcr.org/487b53022.pdf (accessed 6 May 2013).
210 Declaration of Third Extraordinary Session of the Assembly of the Heads of State and
Government of the African Union on Employment and Poverty Alleviation in Africa,
Ouagadougou (September 2004) para 3.
211 African Union Draft strategic framework for a policy on migration in Africa (undated) 10.
260 Chapter 6

regional rather than a national basis, and labour exchanges facilitating the
flow of labour on a regional scale, are implicit in this broader vision.

Confining the focus to ‘skilled’ labour, however, is problematic,

suggesting that existing divisions in the labour market are inherent and
development is, by definition, a process driven by the ‘skilled’ in which the
‘unskilled’ play no role. The bigger picture of regional development poses
the challenge of harnessing the talents of increasing sections of those who
are currently excluded by making them part of the overall developmental
process, whether in terms of training and development, performing
appropriate tasks or providing a range of needed services. Given that the
vast majority of migrants are drawn from marginalised and ‘unskilled’
groups, such an approach is integral to any viable policy for the
management of migration.

Policy reform of this nature would align South Africa’s vision of

human rights protection with the practical need to integrate the flow of
migrants with social and economic developmental initiatives. By bringing
policy more closely in line with guiding legal principles, South Africa
would model the central dimensions of transformative constitutionalism
that frame this study. Ultimately, the capacity to align human rights and
legal protections with the migrant domestic labour sector will be a measure
of the fullest integration of this concept in South Africa’s emergent
practice. Migrant domestic workers feature centrally in this perspective.

5.3 Aligning immigration law and labour law

The current mismatch between immigration law and labour law arises
from the fact that different criteria are adopted in identifying those who
qualify for legal protection. The principal labour statutes212 adopt a
pragmatic criterion by defining employee very broadly as including any
person ‘who in any manner assists in carrying on or conducting the
business of an employer’. As we have seen, it is on this basis that even an
undocumented migrant worker is deemed to be an ‘employee’ falling
within the scope of labour legislation. The Immigration Act, on the other
hand, adopts the criterion of citizenship in defining those who have the
legal right to be employed in South Africa and creates only limited
exceptions of non-citizens who are entitled to become ‘employees’.213 The
anomalous result is that workers who qualify for protection in terms of
labour legislation are subject to deportation in terms of immigration law.

The source of this contradiction may be located in the Bill of Rights

itself, which extends an unqualified right to fair labour practices to
‘everyone’ but limits the right ‘to enter, to remain in and to reside

212 Ie, the LRA, BCEA and EEA: see discussion in part 5.2.1 of Chapter 3 (above).
213 See the discussion in part 2 of this chapter (above).
 Policies, protections and practices for migrant domestic workers in South Africa 261

anywhere in, the Republic’, as well as the right to freedom of trade,

occupation and profession, to citizens only. There is little doubt that, given
the prevalence of similar restrictions in countries around the world, the
limitation would pass the test established in section 36(1) of the
Constitution. It is equally clear that it constrains the transformative impact
of the Constitution by defining the right of participation in the economy
not with reference to those who in fact participate but with reference to
citizenship.

Seeking to resolve this contradiction, which may ultimately call for a

constitutional amendment premised on policy changes of the nature
proposed in parts 5.1 and 5.2 above, will not be attempted within the scope
of this chapter. Even within the present paradigm, however, the
restrictions in question should be narrowly interpreted, in line with
established constitutional principles, so as to limit their exclusionary
impact rather than being mechanically imposed.214 It may also be noted
that the restrictions in question do not stand in the way of extending rights
of entry and economic participation to non-citizens. The Bill of Rights
creates a floor of rights, not a ceiling of rights, and the Constitution
nowhere prohibits the extension of these particular rights to non-citizens.
It is therefore suggested that the redefinition of the statutory rights to enter
and remain in the country should be considered in the context of
developing an inclusive legal framework, capable of accommodating the
diversity of South Africa’s economically active population.

The nature of such a framework falls beyond the ambit of the present
research. What does emerge, however, is that the objective should be to
harmonise immigration law with the pragmatic approach of labour by
seeking to identify, and extending appropriate rights to those seeking to
engage in economic activity within a coordinated regional framework
along the lines discussed in part 5.2 above. As other chapters in this text
also convey, I suggest that the development of such a legal framework,
together with corresponding and harmonising migration and labour
market regulatory frameworks, will necessarily be an evolutionary process
that would unfold on the basis of material progress towards economic and
social objectives. It would, however, be a profoundly transformative
process and, for all the reasons noted earlier, those most directly affected –
including migrants and prospective migrants themselves – should be
involved as closely as possible in the national and regional legislative

214 As was done, eg, in Khosa (n 36 above). In this regard the UN Economic and Social
Council offers the following guideline: ‘Art 2 (3) of the International Covenant on
Economic, Social and Cultural Rights creates a third specific exception to the general
rule of equality for developing countries: “Developing countries, with due regard to
human rights and their national economy, may determine to what extent they would
guarantee the economic rights recognized in the present Covenant to non-nationals.”
As an exception to the general rule of equality, it should be noted that art 2 (3) must be
narrowly construed, may be relied upon only by developing countries, and only with
respect to economic rights’: UN Economic and Social Council The rights of non-citizens
(n 76 above) para 19.
262 Chapter 6

processes in order to ensure that the frameworks that emerge are as

responsive as possible to the highly complex sets of factors, rights and
interests that need to be taken into account. Domestic workers, as a
significant category of migrants, should be among those who take part in
redefining their right to regional mobility.
 Policies, protections and practices for migrant domestic workers in South Africa 263

APPENDIX

Estimated employment in private households 2001 - 2012

Year Number
2001 1 188 000
2002 1 266 000
2003 1 215 000
2004 1 125 000
2005 1 226 000
2006 1 288 000
2007 1 251 000
2008 1 185 000
2009 1 194 000
2010 1 157 000
2011 1 117 000
2012 1 153 000
2001 - 2012 -2.9%
2011 - 2012 3.2%

Source: South African Institute of Race Relations

 7
CHAPTER
ORGANISING FOR
EMPOWERMENT

Nandi Vanqa-Mgijima, Yvette Wiid and Darcy du Toit*

1 Introduction

The need for organisation of domestic workers as a means of defending

their rights, pursuing their interests – for example, in securing better
working conditions – and participating in the formulation as well as the
enforcement of their rights, has featured throughout this study. Absence of
organisation, it has been shown, has a disempowering effect at an
individual as well as a collective level. This chapter explores the
connection between organisation and the empowerment of domestic
workers.1 While it is accepted that organisation in itself does not
necessarily lead to empowerment, it is argued that effective organisation is
pivotal to empowerment. However, it is also true that a degree of worker
empowerment – for example, in the form of the necessary knowledge,
experience and mutual support – is fundamental to organisation. The fact
that domestic workers, like so many others in non-standard employment,
have largely failed to organise themselves2 may be linked to a general
absence of such empowering factors in the places where they work.
‘Organisation’ and ‘empowerment’ in this sense are therefore understood
as two aspects of a single process.

Numerous attempts have been made by different stakeholders to

address these challenges.3 Frequently this has taken place within the
framework of existing trade union movements, on the assumption that it
* Assistance provided by Roger Ronnie in coordinating the writing of this chapter is
gratefully acknowledged.
1 As will be discussed below, ‘empowerment’ can be given different meanings in
different contexts. The sense in which it is used here is discussed part 3 of this chapter.
2 See, eg, S Vettori ‘The extension of labour law protection to atypical employees in
South Africa and the UK’ Paper presented at the 15th World Congress of the
International Industrial Relations Association, Sydney, 2009 http://www.ilera-
directory.org/15thworldcongress/files/comm_five.html (accessed 16 May 2013).
‘Non-standard’ has been defined for present purposes ‘as referring to workers who are
not in full-time, indefinite employment and/or not employed in formal workplaces
(including part-time, temporary and agency workers)’: Introduction (n 4) above.
3 As discussed more fully in parts 4 and 6 of this chapter.

265
266 Chapter 7

would not be feasible to seek to organise domestic workers in isolation and

that such organisation would benefit from the supportive infrastructure of
the existing movement. Yet traditional forms of trade union organisation
have met with limited success in the domestic sector.4 Historically, trade
unionism developed out of the struggles of the emerging industrial working
class with its main growth points in large-scale industry, transport and
mining. Although trade union organisation rapidly spread to other sectors,
including white-collar workers and the public sector, it remained
concentrated among workers in standard employment. The lesson has
been that workers who work in (large) groups in communal workplaces in
the same industry or sector have been the backbone of trade unionism
(referred to below as the ‘industrial’ model), which developed as a means
of promoting their collective rights.5

Workers doing non-standard work have largely been left out of this
development. To begin with, they do not necessarily work in a single
workplace and contact with a trade union organised on industrial lines
may be extremely problematic.6 This alone is a huge obstacle to effective
organisation; other problems will be discussed in more detail below.7

The starting point, therefore, is twofold: on the one hand, domestic

workers cannot be organised in isolation and could benefit from the
support of existing trade unions or trade union federations; on the other
hand, alternative forms of organisation should (also) be considered in the
context of the empowerment of domestic workers. In fact, various
innovative methods of organising workers in non-standard employment,
including domestic workers, have been developed over the years.8 The
challenge lies in adapting, applying or further developing such methods
and ideas as a basis for more general and effective organisation in the
domestic sector. Empowerment bound up with and arising from
organisation, through new as well as existing methods, will therefore be
the focus of the chapter.9

From previous chapters it is clear the challenges are formidable.

Domestic work – to the extent that it has been considered to be ‘work’ in

4 See, eg, part 5.2.2 of Chapter 3 and part 5.4 of Chapter 5 (above). For a more detailed
discussion, see J Cock Maids and madams: Domestic workers under apartheid (1989); AJ
King Domestic service in post-apartheid South Africa: Deference and disdain (2007); S Ally
‘Domestic worker unionisation in post-apartheid South Africa: Demobilisation and
depoliticisation by the democratic state’ (2008) 35 Politikon: South African Journal of
Political Studies 1; S Ally From servants to workers: South African workers and the democratic
state (2010).
5 PRN Sinha et al Industrial relations, trade unions, and other labour legislation (2006) 26.
6 D Gallin ‘Propositions on trade unions and informal employment in times of
globalisation’ (2002) 33 Antipode 531 538.
7 See part 6 of this chapter (below).
8 See part 4 of this chapter (below).
9 As argued previously, addressing the challenges of organising domestic workers will
contribute to addressing the challenges of organising non-standard workers more
generally.
 Organising for empowerment 267

an economic sense – has historically been regarded as unskilled and the

wages paid for domestic work have been correspondingly low.10 As a
result, domestic workers have been disempowered not only economically
but also in a social and cultural sense. The interaction between
organisation and empowerment must take account of these complex and
sometimes hidden facets and must seek to address empowerment at an
individual as well as a collective level. Disempowered individuals do not
build effective organisation or hold leaders to account. A holistic approach
to empowerment will contribute to transforming domestic work to decent
work as conceptualised by the International Labour Organisation (ILO).11
It should also be reiterated that, in the context of the paradigm of
responsive regulation that forms the basis of this study,12 organisation is
understood as a means not only of defending domestic workers’ rights but
also of participating in the legislative process of giving effect to their rights.

2 Domestic workers in South Africa

The problematic conditions affecting domestic work have already

discussed in some detail in earlier chapters. This overview focuses on
conditions that are most pertinent to the question of organisation. The vast
majority of domestic workers in South Africa are African women from
disadvantaged backgrounds brought about, in the main, by the apartheid
policies of the pre-1994 period.13 The experience of being black, a woman
and a domestic worker has been historically constituted. Under apartheid,
black South Africans received inferior education, in particular black
women. Domestic workers are among those who have had the least access
to education,14 while working under conditions of isolation and extreme
subordination may be further detrimental to the development of
knowledge and self-esteem. As a consequence, many have little awareness
of their rights as workers. Indeed, given the intimate nature of domestic
work, the very notion of such rights may be foreign. These factors are

10 The current minimum wage for domestic workers is R1 746 per month in terms of
Sectoral Determination 7: Domestic Worker Sector, South Africa: https://
www.labour.gov.za/legislation/sectoral-determinations/sectoral-determination-7-dom
estic-workers (accessed 12 June 2013).
11 As discussed in Chapter 2 (above).
12 See Chapters 1 and 2 (above).
13 See the Employment Conditions Commission 2008 Investigation into Minimum
Wages and Conditions of Employment. Prior to 1914, domestic workers were
predominantly drawn from the ranks of young African men. This changed with the
growth of the mining industry. See C van Onselen Studies in the social and economic
history of the Witwatersrand 1886-1914 Vol 2: New Nineveh (1982).
14 According to Lund & Budlender, approximately 46% of domestic workers have not
received any education beyond primary level: F Lund & D Budlender Paid care
providers in South Africa: Nurses, domestic workers and home-based care workers (2009) 7.
According to a survey in 2009, approximately 35% of domestic workers had not
progressed beyond primary school, 56% had some level of secondary education and
approximately 8% had completed secondary school: African Response ‘Domestic
workers survey prepared for the Social Law Project at the University of the Western
Cape’ (2009, unpublished).
268 Chapter 7

aggravated by the fact that domestic work is widely seen as ‘informal’15

and, hence, not subject to legal rules, as well as being less stable than more
formal occupations.

The fact that most domestic workers are employed in private

households brings problems of its own.16 Not only does it place them
beyond the effective reach of industrial trade unionism; due to their
isolation domestic workers may be compelled to tolerate unjust practices
such as low wages, long working hours and verbal or physical abuse.17 As
a consequence, domestic work is undervalued as an occupation and widely
seen as unskilled work suitable only for persons unable to do other work.18

To compound the problem, many domestic workers are migrants,

having travelled to South Africa from other African countries where even
greater insecurity prevails in search of better prospects for themselves and
their families.19 Many are undocumented and, as such, are even more
likely to experience exploitation than the already vulnerable South African
domestic workers since they live with the added threat of deportation
should the authorities become aware of their existence.

Against this background the right to dignity of domestic workers,

bound up with which is recognition of the value of domestic work, is
central to the struggle for organisation and empowerment. While
enforcement of basic standards of employment in the sector is a key
objective,20 it has been argued that the basis for effective enforcement is the
empowerment of domestic workers themselves to speak up or take
appropriate action if they are treated unfairly. This at the heart of effective
regulation not only the work situation but also in securing domestic
workers’ other rights which, it was argued in Chapter 2, cannot be
understood in isolation from each other.21 Achieving this, it has also been
argued, will involve addressing the causes of inequality and the
marginalisation of domestic workers through a process of transforming

15 C Bonner ‘Domestic workers around the world: Organising for empowerment’ Paper
prepared for the Social Law Project Conference Exploited, undervalued - and essential:
The plight of domestic workers, Cape Town, 2010 3 http://www.dwrp.org.za/index.php/
2010-conference/conference-papers/article/55-domestic-workers-around-the-world-
organising-for-empowerment- (accessed 18 June 2013).
16 E Delport The legal position of domestic workers in South Africa (1995) 212 http://
www.wiego.org/publications/FactSheets/WIEGO_Domestic_Workers.pdf (accessed
17 March 2010).
17 Cock (n 4 above) 43.
18 Bonner (n 15 above) 17.
19 S Flint ‘The protection of domestic workers in South Africa: A comparative study
(part 1)’ (1988) 9 Industrial Law Journal 1. For a more detailed discussion, see Chapter 5
(above).
20 Although domestic workers are covered by the Basic Conditions of Employment Act
75 of 1997 (BCEA), the evidence indicates that many if not most domestic workers are
still denied their statutory rights. See Chapters 2 and 4 above.
21 Eg, on the violation of the right of domestic workers to housing in terms of sec 26 of
the Bill of Rights, see A Tonkin ‘The plight of domestic workers: The elusiveness of
access to adequate housing’ (2010) 14 Law, Democracy & Development 1.
 Organising for empowerment 269

social institutions, patterns of behaviour and the consciousness of

employers as well as workers in such a way that the values of the
Constitution become embedded in the everyday interactions between
domestic workers, their employers and social institutions.22
Empowerment is understood as a process of equipping workers with
sufficient knowledge of their rights or, if they know their rights, with the
means of ensuring compliance. What this process entails is considered
more fully in the next part of this chapter.

3 The meaning of empowerment

Any attempt at promoting the empowerment of workers in South Africa

may benefit from lessons learned in the struggle against apartheid. The
emerging mass movement of the 1970s and 1980s transformed thousands
of men and women from the most oppressed layers of society into
respected leaders. Democratic organisations, including trade unions,
political parties and non-governmental organisations, played a key role in
this process, culminating in the transition to a non-racial parliamentary
order in 1994.23 Whether or not the term ‘empowerment’ was used, the
growth of the trade unions in particular depended on building strong and
accountable leadership at various levels that would give the necessary
attention to developing their members’ capacities for self-organisation,
self-awareness, knowledge of their rights and ability to act
independently.24 Solidarity could not be built by seeking to gain power
over others or control over resources; it depended on releasing and
developing the experience and knowledge that workers already have,
enabling them to make informed decisions, to mandate leaders to represent
them and to hold those leaders to account. In short, effective organisation
went hand in hand with empowerment.

Building on this tradition, it is necessary to consider the meaning of the

term – or, more precisely, the different facets of the process it refers to – in
more detail. ‘Empowerment’ has been given different meanings in
different contexts25 and by different institutions such as Oxfam and the
World Bank.26 The aim is not to analyse these meanings with a view to

22 See Chapter 2 (above).

23 There is rich and varied literature recording this experience. For a concise overview,
see D Ginsburg & E Webster ‘South Africa: A negotiated transition’ in G Kester &
OO Sidibé (eds) Trade Unions and Sustainable Democracy in Africa (1997) 111.
24 For a present-day exposition of such an approach, see the website of the Women on
Farms Project http://www.wfp.org.za (accessed 29 April 2010).
25 ‘Empowerment’ has numerous meanings in a general context, most of which are
relevant for domestic workers. See S Quiroz Empowerment: A Selected Annotated
Bibliography (November 2006) http://www.poverty-wellbeing.net/en/Home/
Empowerment/More_on_Empowerment (accessed on 19 July 2012).
26 C Scrutton & C Luttrell ‘The definition and operationalisation of empowerment in
different development agencies’ Empowerment Note 2, Swiss Agency for
Development and Cooperation, August 2007 http://www.poverty-wellbeing.net/en/
Home/ Empowerment/More_on_Empowerment (accessed 19 July 2012).
270 Chapter 7

preferring one above others but, rather, to understand them as

complementary approaches towards a single (if complex) objective which,
for present purposes, is bound up with developing domestic workers’
capacity for (self)organisation. ‘Empowerment’, in other words, is used to
denote ‘both an outcome and a process’ in contrast to the ‘instrumentalist
view’ which is described as ‘[focusing] more narrowly on the importance
of process [on] the assumption that participation alone will lead to
empowerment’.27 The Swiss Agency for Development Cooperation (SDC)
illustrates this understanding by defining empowerment as ‘a process of
emancipation in which the disadvantaged are empowered to exercise their
rights, to obtain access to resources and to participate actively in the
process of shaping society and making decisions’.28 Given the intertwined
nature of ‘outcome’ and ‘process’, ‘empowerment’ in any meaningful
sense necessarily encompasses both. A similar interconnectedness of
‘outcome’ and ‘process’ is reflected in the content of the fundamental rights
entrenched in the South African Bill of Rights which various statutes seek
to implement.29 In the present context the overall ‘outcome’ being pursued
is to enable domestic workers to lead lives of freedom, equality and dignity
as contemplated by the Constitution. The ‘process’ of achieving this is
framed by the exercise of various the rights guaranteed by the Constitution,
such as the right to freedom of association, as well as the various forms of
legal and practical interventions mandated by the Constitution, such as the
promotion of the right to fair labour practices. To this extent the idea of
transformative constitutionalism is in line with that of ‘transformation’ put
forward by developmental agencies which have adopted a rights-based
approach.

A useful approach to understanding the content of this process more

clearly is that of Luttrell and Quiroz, who identify four ‘dimensions’ of
empowerment which they term ‘economic’, ‘human and social’, ‘political’
and ‘cultural’.30 Each of these dimensions encompasses a set of outcomes
which, in broad terms, correspond to the content of the constitutional
rights of domestic workers which it is sought to realise by means of
organisation and other strategies. The nature of each dimension is
considered in more detail below in order to gain a sense of the range of
outcomes and processes bound up with organisation based on this
transformative objective.

3.1 Economic empowerment

According to Luttrell and Quiroz, economic empowerment involves the

provision of skills and resources to people in order for them to access

27 Scrutton & Luttrell (n 26 above).

28 As above.
29 See Chapters 3 and 4 (above).
30 C Luttrell &, S Quiroz et al ‘Understanding and operationalising empowerment’
Overseas Development Institute, Working Paper 308, November 2009 1.
 Organising for empowerment 271

sustainable incomes and livelihoods. At a conceptual level it is tempting to

refer to the policy of ‘black economic empowerment’ as a way of gauging
the meaning of economic empowerment in a broader South African
context.31 While the notion of black economic empowerment in general is
clearly not the same as that applicable to domestic workers specifically, it
is interesting to note that the Broad-Based Black Economic Empowerment
Act defines economic empowerment in terms of ‘integrated socio-
economic strategies’ including ‘human resource and skills development’.32
It has also been described as an integrated and coherent socio-economic
process.33 This explanation ties in with the notion that empowerment
consists of both an ‘outcome’ and a ‘process’ and that the two are
interrelated.

Economic empowerment for domestic workers encompasses different

aspects. Most important from a practical perspective is the wages paid to
domestic workers. Inadequate wages is one of the foremost problems
expressed by domestic workers. Linked to the issue of inadequate wages is
the actual and perceived worth of domestic workers.34 The minimum
wage for domestic workers is substantially less than that for workers in
comparable forms of employment.35 This low level is indicative of the low
market value of domestic work, which is influenced by its perceived value
in the eyes of government as well as employers. Employers will resist, and
broader society is unlikely to support, the approval of a significantly higher
minimum wage for as long as domestic work is seen as easy, unskilled and
non-essential. Economic empowerment through the earning of a decent
wage is thus dependant on the changing of perception of domestic work
and the recognition thereof as decent work.36 A transformation of this
magnitude, in turn, is likely to depend on a significant development of
organisation capable of articulating domestic workers’ interests.

Economic empowerment must also further account for periods when

workers are unable to work. As discussed in Chapter 4, social security
measures in theory fill this gap; and, while the availability of statutory

31 The purpose of black economic empowerment is to ‘increase the effective participation

of the majority of South Africans in the comparable economy’: Preamble to the Broad-
Based Black Economic Empowerment Act 53 of 2003.
32 Sec 1, Broad-Based Black Economic Empowerment Act 53 of 2003.
33 The Foundation for the Development of Africa – Black Business Development http://
www.foundation-development-africa.org/africa_black_business/index.htm (accessed
20 July 2012).
34 See Chapter 2 (above).
35 The current minimum rate for domestic workers in metropolitan areas in terms of
Sectoral Determination 7 (n 10 above) is R1 746 per month. The minimum wage for
farm workers from 1 March 2013 to 28 February 2014, in contrast, is R2 274.82 per
month following industrial action in 2012: Sectoral Determination 13: Farm Worker
Sector, South Africa, GNR 149 of 17 February 2006. The minimum hourly rate for
contract cleaning workers ranges from R13.09 to R14.45 (GN 35825, Government
Gazette, 26 October 2012) compared with hourly rates of R7.65 to R8.95 for domestic
workers in terms of SD 7.
36 See discussion in part 4 of Chapter 1 (above).
272 Chapter 7

social security provisions to domestic workers is limited, various types of

informal social security arrangements have been created amongst groups
of workers. By definition, such arrangements are not regulated by law; it is
left to the intended beneficiaries to participate in the scheme and exercise
control amongst themselves.37 Schemes of this nature are relatively
widespread in South Africa and not limited to a particular sector of the
workforce, particularly among poorer communities; for example, informal
burial societies and stokvels.38 Through making use of informal social
security measures, domestic workers are responding to inadequacies of the
social security system and low wage levels. But, through implementing and
administering informal social security schemes, workers are also
participating in processes of economic empowerment involving a degree of
redistribution of wealth amongst themselves.39

3.2 Human and social empowerment

Human and social empowerment is described as a process that allows

people to ‘gain control over their own lives’.40 It involves the provision of
tools which people can use in actively managing their own affairs, as
opposed to allowing third parties to dictate their needs and wants. It is a
social process, since it takes place in relation to other people. Essentially,
then, social empowerment is a process through which people foster power
that they can use in their daily lives in order to act on issues that are
important to them.41

The importance of human and social empowerment cannot be

overemphasised in the context of domestic workers. Central to the theme
of empowerment of domestic workers is the perceived value of domestic
work and the social marginalisation of domestic workers. As such it is
concerned with the various ways in which domestic workers’ right to
substantive equality is inadequately provided for by social institutions that
fail to take account of their particular circumstances – for example, in the
areas education and housing. In this sense empowerment is linked to the
realisation of the right to equality, measurable against indicators such as
the social chasm between domestic workers and their employers.42 It is

37 Informal social security schemes can be described as mechanisms used by persons

excluded from formal social security provisions to provide for protection against
certain social risks. Traditionally, informal social security was kinship-based but has
since extended to persons who may not be related to each other: see E Strydom et al
Essential social security law (2001) 306.
38 A stokvel is a scheme in terms of which participants contribute an amount to a
common fund for a certain period of time, after which the common fund is divided
equally between the participants at an agreed date.
39 For further discussion, see part 3 of Chapter 3 above.
40 Luttrell & Quiroz (n 30 above) 16.
41 N Page & CE Czuba ‘Empowerment: What is it?’ (1999) 37 Journal of Extension 3
http://www.joe.org/joe/1999october/comm1.php (accessed 30 June 2013).
42 D du Toit ‘Extending the frontiers of employment regulation: The case of domestic
employment in South Africa’ (2010) 14 Law, Democracy & Development 207.
 Organising for empowerment 273

submitted that organisation around the relevant issues, typically associated

with NGOs at present, will play a crucial role in empowerment at this
level.

3.3 Political empowerment

Political empowerment may be typified as the capacity of people to

analyse, organise and mobilise, resulting in ‘the collective action that is
needed for collective change’.43 This implies a sufficient level of political
education and awareness, enabling participants to act on the basis of
personal conviction rather than responding to political exhortation –
which could be described as a form of human and social disempowerment.
As an objective it is naturally linked with a rights-based approach, since
one of its intended outcomes is the ability of people to lay claim to their
rights and entitlements.44 It is thus an essential purpose of the organisation
of domestic workers, as demonstrated in the effective advocacy role played
by domestic workers’ organisations and supportive NGOs in the campaign
for the adoption of ILO Convention 189 on Decent Work for Domestic
Workers.45

Political empowerment for present purposes may be understood as

involving the permanent organisation of domestic workers, enjoying
general legitimacy – reflected, for example, in full participation in
regulatory processes – and capable of mobilising political pressure when
needed.46 The crucial political role played historically by trade unions in
many countries, based on the mobilisation of large groups of workers
around causes that attracted widespread popular support, contributed to
delivering results of such magnitude that its importance in the area of
domestic work cannot be underestimated. Given the limitations of
industrial trade unionism in this sector, however, it implies the
development of appropriate forms of organisation based on its unique
conditions rather than seeking to replicate forms of mobilisation that have
proved effective in other sectors. It also involves, as noted above, the
individual empowerment of workers, enabling them to participate as
conscious actors rather than mere followers.

3.4 Cultural empowerment

Luttrell and Quiroz summed up cultural empowerment as involving a

‘redefining of rules and norms and the recreating of cultural and symbolic

43 Luttrell & Quiroz (n 30 above) 1.

44 Luttrell & Quiroz (n 30 above) 1, 2, 6, 9 and 16; and see discussion of Fraser’s
approach to ‘transformative constitutionalism’ in part 4.4 of Chapter 2 (above).
45 As outlined in part 1 of Chapter 1 (above).
46 Eg, the idea of lawful protest action was considered positively by domestic workers at a
workshop on Mobilisation Strategies held by DWRP in Johannesburg 6 and 13 May
2012, 22 July 2012 and 18 and 21 October 2012.
274 Chapter 7

practises’ which ‘may involve focusing on minority rights by using culture

as an entry point’.47 While this may appear to be a less obvious dimension
of empowerment, it has a vital role in a multi-ethnic country such as South
Africa where people from many different cultures and belief systems may
work in the same workplace, industry or sector.48 Respect for a person and
respect for that person’s cultural practices are closely bound together.
Taking culture as a point of departure may highlight the right of people to
equal treatment, while challenging and redefining discriminatory rules and
norms. Crucially, it also involves the mobilisation of those who are subject
to such discrimination in resisting it.

The present inequality between domestic workers and their employers

suggests that respect for workers’ cultural practices, and hence their
identity,49 is likely to depend on the sensitivity of employers rather than
being observed as a norm. Migrant workers in particular are subject to a
degree of marginalisation, also in relation to their cultural identities, that
would not be tolerated in other spheres of employment.50 While it is not
possible to quantify the extent of such marginalisation, it is safe to say that
it is not only an indicator of inequality between worker and employer but
an obstacle in itself to achieving recognition of domestic workers rights in
the workplace or beyond. Disregard by the employer of defining aspects of
the worker’s personality not only falls within the definition of unfair
discrimination;51 it can only be destructive of the sense of purpose and
paradigm of human equality that forms the basis of mobilisation for rights-
based outcomes over and above reaction against injustice as a purpose in
itself. At the same time it is likely to translate into isolation, defensiveness
and increased risk of victimisation. Inculcating the self-esteem and
confidence required to insist on respect for a worker’s cultural identity as
well as preparedness to campaign for it, it is submitted, are integral and
defining functions of effective organisation.

3.5 Individual and collective empowerment

Empowerment of domestic workers has so far been discussed in relation to

domestic workers collectively rather than the empowerment of individual
workers. This is so because problems tend to be generalised throughout the
sector and, as argued above, individuals cannot become empowered in

47 Luttrell & Quiroz (n 30 above) 1.

48 C Fouche et al ‘The evaluation of a diversity program’ (2004) 2 South African Journal of
Human Resource Management 37.
49 Eg, by ignoring workers’ names by renaming them. ‘I tell her [the employer] I am not
Jane but she would still call me Jane. Saying that as long as I’m in her house I will be
Jane, otherwise get out of the door if you think I am abusing you’: Statement by
domestic worker at DWRP focus group discussion held in Pinetown, 25 April 2009:
DWRP http://www.dwrp.org.za/images/stories/DWRP_Research/chapter_1.pdf
(accessed 13 June 2013).
50 See part 2 of Chapter 6 (above).
51 As discussed in part 4.4 of Chapter 2 (above).
 Organising for empowerment 275

isolation from others. However, it has also been suggested that individual
workers will not easily participate in collective action unless they have
achieved a certain level of awareness which is most readily fostered by
collective action. Collective and individual forms of empowerment are
thus mutually reinforcing and it is impossible to determine ‘which should
come first’. From a policy perspective it may be concluded that the legal
and practical environment should be supportive of worker organisation
(aimed at all forms of empowerment discussed above) as well as
dismantling the barriers experienced by individuals, having due regard to
the realities of the sector.

More than in most other sectors, however, it is arguable that individual

empowerment of domestic workers has an importance transcending the
development of organisation as an objective in itself. Arguably, the most
abiding reality is the isolation of most domestic workers in private homes
and the fact that common workplaces are rare.52 The difficulties of
building organisation under such conditions, certainly on the model of
industrial trade unionism, have already been noted; addressing these
difficulties forms the subject matter of the remainder of this chapter. Even
where workers are organised, however, most are still compelled to deal
with their employers on a one-to-one basis. As a general rule there can be
no equivalent to an ongoing shop steward presence in the workplace to
intercede with employers;53 every worker must, in a sense, be capable of
acting as her own shop steward, relating to the employer on a basis of
equality in a relationship characterised by a huge legacy of social
inequality. ‘Individual empowerment’ is used here as shorthand for the
qualities that workers need to develop in order to rise to this challenge.

Lack of education, training and access to information, combined with

the perception of domestic work as being inherently unskilled, plays a large
part in maintaining the legacy of inequality between employer and
employee.54 Appropriate forms of education and training, it is submitted,
should form part of any programme of empowerment.55 Apart from its
importance in transforming domestic work into ‘work like any other’ in
terms of occupational status and remuneration, it may also contribute to
adjusting the balance of power between worker and employer in such a
way that the worker is seen by the employer as a person possessing skills,
knowledge and capabilities and is treated with greater respect both for her
dignity and her legal rights. From this standpoint education and training

52 Delport (n 16 above) 4.
53 This is not to disregard the possibility of intervention by an organisation of domestic
workers in specific cases, or by labour inspectors. It is only to suggest that, given the
intimate and dispersed nature of domestic work, such intervention is likely to be the
exception rather than the rule: see discussion in Chapters 2 and 5 (above).
54 Lund & Budlender (n 14 above) 25. See also the discussion part 5.3 of Chapter 5
(above).
55 As discussed in Chapter 2 (above), this also flows from the decent work agenda of the
ILO and the rights to dignity, equality and fair labour practices contained in the South
African Bill of Rights.
276 Chapter 7

should form a priority for any organisation of domestic workers, not only
in seeking to provide training for its members but, perhaps more
importantly, seeking to promote the development of appropriate
programmes for domestic workers through its engagement with regulatory
structures at national and sectoral levels.

3.6 Empowerment and ‘capabilities’

More work is needed in exploring the interrelationship between outcomes

and processes that is encapsulated in the broad term ‘empowerment’. A
highly relevant approach is that of Sen, generally referred to as the
‘capability approach’, which starts not from rights in the abstract – which
people ‘should be able’ to enjoy – but, rather, on what they are actually
capable of enjoying given the social and economic circumstances in which
they find themselves.56 From this standpoint ‘development’ is understood
as ‘a process of expanding the real freedoms that people enjoy’ which, in
turn, depends on ‘the expansion of the “capabilities” of persons to lead the
kinds of lives they value’.57 While (sustainable) economic growth is
indispensable in generating resources needed for development, the critical
factor lies in what Sen terms ‘instrumental freedoms’, including ‘political
freedoms, economic facilities, social opportunities, transparency
guarantees and protective security’.58 Although this approach evolved in
relation to development in general, it may also shed light on the
transformative implications of the implementation of labour rights.59 It
suggests that ‘empowerment’ may also be understood as a process, or
series of processes, of expanding workers’ capabilities to enjoy the
freedoms in question. In the present context it may be concluded that
organisation of domestic workers should operate as a means of promoting
these processes and could define itself within this framework.

4 Towards an appropriate organisational model for

domestic (and other vulnerable) workers

For reasons already noted, domestic work has generally been viewed as ‘an

56 In Sen’s words, it is an approach concerned with ‘advancing the richness of human life,
rather than the richness of the economy in which human beings live’: United Nations
Human Development Reports: http://hdr.undp.org/en/humandev/ (accessed 17
June 2013). It is thus entirely consistent with the concept of ‘substantive equality’
which forms the basis of the South African Bill of Rights, as discussed in Chapter 2
above.
57 A Sen Development as freedom (1999) 18 & 36.
58 Sen (n 57 above) 53.
59 R Del Punta ‘The goals and means of labour law: A reconceptualisation’ Paper
presented to Inaugural Conference of the Labour Law Research Network, Barcelona,
June 2015 http://www.upf.edu/gredtiss/_pdf/2013-LLRNConf_DelPunta.pdf
(accessed 17 June 2013).
 Organising for empowerment 277

occupational oddity that defies organisation’.60 This is, at least, how it

appears from the standpoint of the dominant industrial trade union model
– also referred to as ‘business’ or ‘service’ models of unionism – which has
encouraged unions to evolve into large organisations focused primarily on
wage regulation at sectoral or national levels. This development has given
rise to centralised forms of governance, in some cases taking the form of
bureaucratic or top-down organisational structures, relying heavily on full-
time officials and office bearers acting on behalf of, and sometimes in place
of, members.61 As discussed above, this organisational model finds little
traction in the domestic sector and, by the same token, may have little to
offer to domestic workers as a means of articulating their interests. The
mismatch between the traditional trade union movement and domestic
workers is summed up by a former trade union organiser: ‘domestic
workers’ unions, where they exist, are small and weak, and do not
contribute much money to the union movement. “So unions are often not
interested in us.”’62

However, times have changed. The impact of globalisation on the

world of work and the challenges it has presented to the traditional trade
union model have been central themes of labour studies over the past two
decades.63 The fragmentation of work processes away from the large-scale,
mass production assembly line and the shift from permanent employment
to non-standard and externalised forms of work have eroded the
foundations of traditional trade union organisation. These effects have
been intensified by the impact of neo-liberal policies, bringing with it a
decline in conditions of life for the poor, and for women in particular, from
whom the vast majority of domestic workers are drawn.

Trade unions have long been debating the way forward. Much
emphasis has been placed on the need for trade unions to ‘think globally’64

60 PR Smith ‘Organizing the unorganizable: Private paid household workers and

approaches to employee representation’ (2000) 79 North Carolina Law Review 45 47. See
also S Nazir ‘Socio-economic conditions of female domestic workers before and after
migration in Faisalabad city’ Masters dissertation, University Of Agriculture,
Faisalabad, 2011 38 http://icdd.uaf.edu.pk/Publications/004.pdf (accessed 17 June
2013).
61 For a recent case in which a trade union was held liable for breach of its legal
responsibilities towards its members, see Ngcobo NO and another v Food and Allied
Workers Union [2012] 10 BLLR 1035 (KZD).
62 V Kanyoka, IDWN Africa Regional Coordinator and former organiser in the
Conservation, Hotels, Domestic and Allied Workers Union (CHODAWU), Tanzania,
cited in Bonner (n 15 above) 10.
63 For an overview, see R Hyman ‘The future of unions’ in Just Labour (2002) 1 7-5 7
http://www.yorku.ca/ julabour/ volume1/jl_hyman.pdf (accessed 2 May 2010). See
also part 5 of Chapter 1 (above).
64 See, eg, R Munck ‘Labour in the global: Challenges and prospects’ in R Cohen &
SM Rai Global Social Movements (2000) 83, as well as the discussions cited in n 65 and
66 below. For a South African perspective, see A Bezuidenhout ‘Towards global social
movement unionism? Trade union responses to globalization in South Africa’
International Institute for Labour Studies, Discussion Paper 115, 2000 http://www.
swopinstitute.org.za/files/bezuidenhoutdp11500.pdf (accessed 30 April 2010); S God-
frey et al Collective Bargaining in South Africa: Past, present and future? (2010) 235-238.
278 Chapter 7

but, while various forms of transnational engagement have emerged, less

has been done in organising locally, in smaller workplaces and amongst
non-standard employees. Significantly, the International Confederation of
Free Trade Unions (as it then was) launched a three-year campaign in 2002
under the banner ‘Unions for Women, Women for Unions’ which focused
on ‘young women, migrant women, women from ethnic minorities,
women workers in the informal economy and in the [Export Processing
Zones]’. This was noteworthy not only in that it led to significant increases
in the numbers of women trade union members in some countries,65 but
also that a special campaign was needed for this to happen. The
implication is that concentration on groups outside the mainstream of
formal employment is exceptional and that concentration on workers in
standard employment remains the norm. Brown sums up the position as
follows:66

Workers’ organisations have been slow to develop their capacities to resist

these changes in any unified or systematic way. This reflects both the
challenges involved in overcoming bureaucratic and organisational traditions
resting on national identities, as well as a slowness to develop political and
ideological alternatives.

This is not the place to consider these questions in detail.67 The main
conclusion for present purposes is that industrial trade unions, even as they
struggle to reinvent themselves, tend to remain unresponsive to or, at least,
fail to prioritise the needs of marginalised women workers (as will be
illustrated below). It may be argued that this is to some extent inevitable;
industrial unions were established to address the needs of their members in
particular economic settings and do not self-evidently have the capacity to
respond to the different needs of broader groups of workers. The practical
position, however, remains (in Hyman’s words) that trade unions are not
merely ‘victims of external forces outside of their control’;68 they are also
victims ‘of their own conservative inertia’ and, thus:

‘[hold] the capacity to shape their own future. In all countries, they possess
powerful traditions and inherited structures; these all too frequently constitute
a straightjacket, but can also provide a resource for creative initiative.

Similar processes have been taking place in South Africa. Webster argues
that there has been a growing differentiation of work, creating new lines of

65 ICFTU A Trade Union Guide to Globalisation 2nd ed (2004) http://www.icftu.org/pubs/

globalisation (accessed 30 April 2010) 117-118.
66 T Brown ‘The desire for something better: Learning and organising in the new world
of work’ in L Cooper & S Walters (eds) Learning/Work: Turning work and lifelong
learning inside out (2009) www.hsrcpress.ac.za (accessed 30 April 2010) 270.
67 For more discussion see Godfrey et al (n 64 above) chapters 1 and 6; L Gentle
‘Globalisation and the labour process’ in V Cornell (ed) New Forms of Organisation
(2009).
68 Hyman (n 63 above).
 Organising for empowerment 279

social inclusion and exclusion in post-apartheid society.69 Increasing levels

of poverty and inequality, combined with unemployment, deregulation,
and cutbacks in social services and social security nets, have affected
women negatively.70 On the one hand women are typically employed in
low-paying, insecure jobs, including domestic work, bearing the brunt of
economic instability. On the other hand, women remain primarily
responsible for reproductive labour, in particular the duties of looking after
children and elderly or sick family members.71 This gendered division of
labour in a climate of mass unemployment contributes to unequal power
relations between men and women and, more specifically, the
disempowerment of working women.

Two aspects of this broad picture are especially significant for present
purposes. The first is that the various forms of disempowerment
experienced by women, while prevalent in many sectors, is an overarching
reality in the domestic sector and must form a defining point of departure
for an organisation of domestic workers. The second is that the setbacks
experienced by the established trade union movement have compelled the
beginnings of a rethink of the meaning of effective worker organisation,
not only in marginal sectors but more generally.72 In some cases this has
led to new interest in domestic workers and other groups previously
regarded as ‘unorganisable’ as presenting a possibility of revitalising the
movement, provided unions are able to adapt their traditional organising
strategies to the needs of a ‘predominantly female, migrant and
reproductive work force’.73 An appropriate organisational model for
domestic workers linked to the broader labour movement, it is suggested,
must be responsive to both these contextual realities while focusing on its
primary strategic challenge: the isolated and intimate nature of the
domestic employment relationship.

Against this background, a variety of initiatives aimed at organising

workers – especially women – in marginalised sectors have been taken in
recent years. In the domestic sector, according to Ally, such organisation
has tended to take two, often competing, forms:74

69 E Webster ‘Trade unions and the challenge of the informalisation of work’ in

S Buhlungu (ed) Trade union and democracy: Cosatu workers’ political attitudes in South
Africa (2006).
70 L Orr ‘Globalising poverty: The gender dimension to job losses, casualisation and
poverty’ NALEDI Discussion document prepared for the COSATU Gender
Conference (2000).
71 ILRIG An Alternative View of Gender and Globalisation ILRIG Globalisation Series No 6
(2002).
72 See part 3 of Chapter 1 (above). The point is returned to in part 8 of this chapter.
73 S Ally ‘Caring about care workers: Organizing in the female shadow of globalization’
(2005) 38 Labour, Capital and Society 185 199 http://www.lcs-tcs.com/PDFs/38_12/
Ally.pdf (accessed 18 May 2013).
74 Ally (n 73 above) 186-187. The ‘association model’, Ally adds, ‘involves primarily non-
union-based migrant, women’, which ‘competes with a union model that seeks to
overcome organized labour’s historical failure to represent domestic workers’: at 191.
280 Chapter 7

On the one hand, an association model recognises and utilises

transnationalism’s reformulation of the calculus of race and gender, and has
pursued a new politics around migrancy. On the other hand, a union model
has attempted to recover the traditional mobilising category of class,
reconfigured to recognise the significance to the labour movement of
gendered care work under globalisation.

In addition, it will be suggested, hybrid forms of organisation have

emerged combining features of both; for example, community-based
organisations not based specifically among migrant workers, or ‘unions’
operating outside the mainstream federations addressing social issues
falling beyond the traditional trade union agenda.75 The aim of
considering these various models, it must be emphasised, is not to compare
their merits or drawbacks in the abstract; organisational forms are
influenced very largely by the social, historical and legal context in which
they emerge. Although it will not be possible to consider these factors
exhaustively in relation to the various examples discussed below, it will be
necessary to look closely at their compatibility with the South African
socio-legal context when seeking to apply the lessons of international
experience to South Africa.

We start by considering some examples of the ‘union model’ in the

domestic sector internationally, followed by a more detailed examination
of its application in South Africa and lessons to be learnt from this
experience. It should be emphasised that no comprehensive analysis can be
attempted within the limits of the present study. The purpose is rather to
arrive at general indications as to the scope for organisation based on
different models and identify case studies that deserve to be examined in
more depth in the context of developing a sustainable organisational
model for domestic workers in South Africa.

5 The ‘union model’

Organisation based on the industrial union model, with greater or lesser

adaptations, has been attempted in various countries; it is also the form of
that the organisation of domestic workers in South Africa has taken since
the 1980s.76 Arguably, it has been most successful under the relatively
favourable and highly regulated conditions of Western Europe preceding
the advent of labour market restructuring in the period since 2008.77
Collective agreements covering domestic workers have been concluded in

75 Bonner also draws attention to the role of non-governmental organisations in addition

to membership-based organisations: Bonner (n 15 above) 6.
76 For more information and background, see ILO Domestic workers across the world: Global
and regional statistics and the extent of legal protection (2013) esp at 71-73.
77 As discussed in Chapter 1 (above).
 Organising for empowerment 281

Belgium, France, Germany, Iceland, Italy, the Netherlands and

Switzerland.78 The initiative has generally been taken by unions within the
major trade union federations organising workers in related sectors such as
services or cleaning and the nature of the bargaining process is dependent
on local conditions, including the degree of organisation of employers. In
the case of Germany Birgit Pitsch, Head of the Department for Women’s
Issues and Migration of the food and allied industries union (NGG-DGB),
explains:79

We have a Collective Agreement at national level that lays down standards

such as a 38.5 hour working week, two days off per week and two free
weekends per month, and holidays of 26-30 days a year. We also have a
Remuneration Agreement concerning wages, Christmas bonuses, etc., which
is reached at regional level. These agreements are negotiated with the
German Housewives’ Association (DHB). This is not a ‘normal’ employers’
body. However, because the 1952 law on minimum working conditions did
not apply to domestic workers, a partner was sought for negotiations for a
Collective Bargaining Agreement, and they were turned to. We reached our
first agreement with them in 1955, and have continued since then, though it is
a somewhat different body today, since opening up their association to men
and service agencies.

It is, however, unclear to what extent such collective bargaining processes

are driven by organised domestic workers as opposed to trade unions
acting in the interests of domestic workers.80 In a number of countries
trade unions have gone beyond the traditional industrial models by seeking
to recruit or form alliances with associations of migrant domestic workers.
In Switzerland, for example,81

the SIT (Interprofessional Workers’ Union) has actively organised migrant

women domestic workers, abandoning workplace organising for community-
based mobilisation, and focusing on both service-oriented advocacy, and
worker empowerment.

Similar initiatives have been taken in Belgium, Portugal and the United
Kingdom. Organising strategies include service-oriented advocacy and
legal and administrative assistance.82 Also in Uruguay the domestic

78 C Mather (ed) ‘Out of the Shadows - Organising and protecting domestic workers in
Europe: The role of trade unions’ Report, European Trade Union Confederation
(2005) 19 http://www.etuc.org/IMG/pdf/Rapport_dosmestic_workers.pdf (accessed
18 June 2013).
79 Cited in Mather (n 78 above) 24. A collective agreement for the Berlin area entered
into in December 2011, valid as from 1 January 2012, laid down a basic monthly wage
of € 1 867 excluding social security contributions; full-time domestic service is thus a
‘luxury’: discussion with Prof Rolf Birk, Trier, 6 July 2012.
80 In many European countries the erga omnes principle means that a collective agreement
may be applicable or extended to an entire sector, including unorganised workers and
employers.
81 Ally (n 73 above) 199-200.
82 Ally (n 73 above). See also M Visser ‘Sweeping changes? Organising and bargaining
for the realisation of the rights of domestic workers’ Research paper prepared for
282 Chapter 7

workers union, the SUTD, recently concluded its third collective

agreement with the employers’ organisation, the Housewives League,
establishing various rights including an eight-hour work day, applicability
of minimum wage legislation, social security benefits and 12 weeks’
maternity leave.83

More research is needed to fully explore the lessons that can be learnt
from these achievements from a South African perspective. In the case of
Europe, entrenched cultures of collective bargaining and the large
resources accumulated by trade unions in many European countries, in
contrast to South Africa’s deeply adversarial labour relations climate and
the relatively limited resources of trade unions outside the major industrial
sectors, suggest that comparisons should be treated with caution. Despite
the increasingly challenging conditions experienced by trade unions in
Europe following the Eurozone crisis, it is likely that a transition to
bargaining for domestic workers or seeking to organise domestic workers
may be more difficult to accomplish in South Africa. In the case of
Uruguay it is suggested, for reasons considered more fully in Chapter 8
(below), that further study of the programme and strategy of the SUTD
and the circumstances surrounding the conclusion of the collective
agreements referred to above will be important from a South African point
of view.

5.1 Kenya

Efforts by trade unions on the African continent to organise domestic

workers are, arguably, more directly relevant to South Africa. In Kenya,
for example, the Kenya Union of Domestic, Hotel, Education Institutions,
Hospitals and Allied Workers’ Union (KUDHEIHA) serves as an example
of a trade union revising its organisational strategies to include domestic
workers.84 The domestic worker component of the union dropped when
experienced union leaders moved into other sectors and the domestic
workers, given the structural problems confronting them, were unable to
sustain themselves organisationally. This situation was reversed after the
union, partnering with the Solidarity Centre of the AFL-CIO (ACILS) and
drawing on further support from the International Union of Food,
Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers

82 Social Law Project, University of the Western Cape (2011) http://www.dwrp.org.za/

index.php/authors-v/article/77-sweeping-changes- (accessed 18 June 2013).
83 IDWN ‘Collective agreement by SUTD in Uruguay and decent work for household
workers in Latin America’ (3 June 2013) http://www.idwn.info/news/collective-
agreement-sutd-uruguay-and-decent-work-household-workers-latin-america (accessed
18 June 2013). See also ILO ‘Domestic workers negotiate new collective agreements in
Uruguay and Italy’ (2 May 2013) http://www.ilo.org/travail/areasofwork/domestic-
workers/WCMS_212212/lang--en/index.htm (accessed 18 June 2013).
84 See KUDHEIHA Organizing domestic workers in Kenya: A success story and a call to action
(2011) 19-20 http://www.solidaritycenter.org/Files/kenya_kudheiha_dwguide2012.
pdf (accessed 18 June 2013).
 Organising for empowerment 283

(IUF) and the International Domestic Workers’ Network (IDWN),

developed a comprehensive strategy built in part on the campaign in
support of ILO Convention 189. These interventions saw the domestic
worker membership of the union increase from 10 at the end of 2008 to
10 500 in November 2009.85

It is submitted that this impressive achievement deserves further study.

Recruitment and capacity-building amongst office-holders appear to have
enjoyed considerable emphasis.86 Important questions from a South
African perspective include the nature of the services provided to members
and the union’s involvement in collective wage determination, as well as
the degree of education and training of rank-and-file members as a means
of empowering them in their relationships with employers.

5.2 Tanzania

A similar model exists in Tanzania, where domestic workers form part of

a broader mixed-sector union, the Conservation, Hotel, Domestic and
Consultancy Workers Union (CHODAWU). A recent report
commissioned on behalf of the IUF and the IDWN revealed that domestic
workers constituted 15 per cent of the CHODAWU’s total membership of
just over 36 000.87 A very large percentage of domestic workers
interviewed, however, stated that they had never heard of CHODAWU or
been approached to join.

CHODAWU has in the past focused mainly on advocacy and other

forms of support for domestic workers. The study made a number of
recommendations relating to legal reform (including ratification of the
ILO Convention No 189 on Domestic Workers) but also proposed two
steps of crucial importance to the organisation and empowerment of
domestic workers:

• Capacity building for domestic workers as a group within CHODAWU;

and
• Union facilitation of the formation of a domestic workers’ employer
organisation.

Bonner argues that the ‘Kenyan model’ allows domestic workers to gain
legitimacy through being part of a recognised trade union, enabling them
to engage the authorities, participate in negotiations and share in the

85 Bonner (n 15 above) 8.
86 KUDHEIA (n 84 above) 21-24.
87 P Mosha ‘United Republic of Tanzania: A study report on situation of domestic
workers' and their organisation in Tanzania’ Report commissioned by the IUF and
IDWN (2012). See also ‘Report of the National Workshop for Domestic Workers’
(2012).
284 Chapter 7

resources of a national union.88 However, the support of a proactive (male)

leadership of a mixed-sector organisation is not a given and the model
could turn out to be disempowering for domestic workers. The success or
otherwise of the KUDHEIA project in Kenya and the CHODAWU
project in Tanzania will provide insight into whether these concerns are
warranted.

5.3 Mozambique

In Mozambique, on the other hand, independent organisations of

domestic workers claiming a combined membership of 10 000 have been
established within the framework of two national trade union
federations.89 Castel-Branco explains:90

Three workers’ organisations currently represent domestic workers in

Maputo: the Associação de Empregados Domésticos de Moçambique (Mozambican
Domestic Workers’ Association – AEDOMO), the Associação das Mulheres
Empregadas Domésticas (Women’s Association of Domestic Workers –
AMUEDO), and the Sindicato Nacional de Empregados Domésticos (National
Union of Domestic Workers – SINED). All are affiliated with one of two
labour federations.

These unions, according to Castel-Branco, have played a major role in

increasing the visibility of domestic workers. They have adopted
organising tactics that respond to the specificities of domestic work – for
example, by using taxi ranks and other public places as recruiting and
meeting places – and taken steps towards empowering domestic workers
by training them to engage in dialogue with their employers. However, it
is difficult to evaluate their prospects in the longer term. The three unions
have emerged in a context of splits within the national trade union
movement and, Castel-Branco informs us, this background of conflict has
continued to bedevil their activities:91

Despite optimism, domestic worker organising has become a battleground for

autonomy, power and resources, with potentially detrimental effects. Despite
almost identical demands, strategies and tactics, AEDOMO, AMUEDO and
SINED do not communicate, let alone collaborate. Deeply entrenched
competition and distrust between workers’ organisations has further fuelled
domestic workers’ scepticism of unions, making recruitment challenging.

88 Bonner (n 15 above) 8.
89 Ie, the Organização dos Trabalhadores Moçambicanos (OTM) and the Confederação Nacional
dos Sindicatos Independentes e Livres de Moçambique (CONSILMO).
90 R Castell-Branco ‘A site of struggle: Organised labour and domestic worker organising
in Mozambique’ Global Labour Column (2013 http://column.global-labour-
university.org/2013/03/a-site-of-struggle-organised-labour-and.html (accessed 19
May 2013). See also R Castel-Branco ‘Organizing the patience industry: Profile of a
domestic worker in Maputo, Mozambique’ WIEGO Workers’ Lives No 3 (October
2012) http://wiego.org/sites/wiego.org/files/publications/files/Castel-Branco_WIE
GO_WL3.pdf (accessed 19 May 2013).
91 Castel-Branco A site of struggle (n 90 above).
 Organising for empowerment 285

Thus, while ILO Convention 189 forms a cornerstone of each union’s

programme, a collaborative strategy with potentially major advantage for
domestic workers has yet to be realised.

5.4 The United States of America

While the USA is far removed from Africa in terms of socio-economic

conditions, the marginalisation of trade unions in the private sector reflects
obstacles to organisation in the domestic sector that are no less, and
arguably more, formidable than those encountered in the domestic sector
in South Africa.92 Despite this, one of the most successful examples of a
trade union spearheading the organisation of domestic workers is offered
by the Service Employees Industrial Union (SEIU) Local 434B’s campaign
to organise home-based care workers in the USA. Focusing on the
women’s community lives, the union combined innovative organising
tactics with a focus on political and structural change which other
organisations ignored. As a result, the union eventually drew in 74 000
mainly female workers from ethnic minorities speaking more than 100
languages between them.93 However, the success of the campaign was not
defined simply by numbers; its real importance, Ally submits, lay in
legislative changes to the basic structure of care work and the
corresponding industrial relations system.94

To the extent that the conditions of home-based care workers –

isolated in private homes, with no single employer – are comparable to
those of domestic workers, it is submitted that significant lessons are to be
learnt from the experience of the SEIU. In particular, the emphasis placed
on political aims demonstrates the importance of broadening the
organisational agenda from terms and conditions of employment to all
issues that play a vital role in workers’ lives.

5.5 South Africa

5.5.1 The ICU

Although the organisation of domestic workers has always been difficult

there have been persistent attempts over the years to include them in the
emerging movement of trade unions formed by black workers who were

92 Total US trade union membership comprised 11.3% of the workforce in 2012,

compared with 11.8% in 2011, whereas in the private sector it was reduced to 6.6%:
US Department of Labor Bureau of Labor Statistics ‘Economic news release’ (23
January 2013) http://www.bls.gov/news.release/union2.nr0.htm (accessed 18 June
2013).
93 Ally (n 73 above) 200.
94 Ally (n 73 above) 201.
286 Chapter 7

excluded from the statutory collective bargaining system.95 Early

organisations that had an impact on black women workers included the
Industrial and Commercial Workers’ Union (ICU) and the Women
Workers’ General Union.96 Though formed by African and coloured dock
workers in Cape Town in 1919, the ICU soon started drawing in
municipal, mine, building, agricultural, marine, railway, transport,
factory, domestic and warehouse workers.97 Rather than organising on the
shop floor, it adopted a militant stance and sent out a political message that
appealed to large numbers of urban and rural workers. As its founder,
Clements Kadalie, proclaimed in 1923:

Whatever the path may be, the forthcoming Congress must determine to
establish a formidable Labour Organisation, through which the African
worker shall more and more win a real emancipation for himself and take his
rightful place in the ranks of those who do the world’s useful work.98

In reality, the ICU never became a trade union in any traditional sense of
the word but, rather, was the forerunner of the mass movements of later
years at a time when the African National Congress was still an
organisation of professional and propertied people. Through
demonstrations and mass meetings it mobilised thousands of black
workers, establishing a tradition of protest which later movements built on
and reaching a membership of about 100 000 at its peak in 1927.99
However, it remained essentially a protest movement and established no
lasting organisational structures. Split by leadership struggles and
ideological confusion it went into rapid decline and by the early 1930s
ceased to exist.100 It did, however, leave one lasting legacy: an
understanding that it was possible for black workers, including domestic
workers, to unite in a single movement that could stand up for their rights.
Events would soon show that the message was not lost on black domestic
workers.

95 The original Industrial Conciliation Act of 1924, which established industrial councils
as collective bargaining forums and recognised trade unions of ‘employees’, excluded
‘pass-bearing Natives’ from the definition of ‘employee’ – an exclusion that was later
extended to all African workers and was maintained until the resurgent trade union
movement of black workers compelled its repeal in 1979.
96 I Berger ‘Sources of class consciousness: South African women in recent labor
struggles’ (1983) 16 International Journal of African Historical Studies 49 66.
97 J Baskin ‘Planting the seeds: Unions before COSATU’ in E Webster et al (eds) Work
and Industrialisation in South Africa (1994).
98 C Kadalie ‘African Labour Congress’ Workers’ Herald 21 December 1923, quoted in
T Karis & GM Carter (eds) From protest to challenge: A documentary history of African
politics in South Africa 1882–1964 (Vol 2) (1972) 325; see also http://www.
sahistory.org.za/archive/african-labour-congress-article-clements-kadalie-na%C2%A
Dtional-secretary-icu-workers-herald-dece (accessed 30 June 2013).
99 L Callinicos Working life 1886-1940: Factories, townships and popular culture on the rand
(1987) 114.
100 Callinicos (n 99 above).
 Organising for empowerment 287

5.5.2 The African Domestic Servants League

In the 1930s the first efforts were made to form organisations of domestic
workers, though with limited success and, to begin with, no clear trade
union orientation. In the late 1930s Lucy Twala attempted to form the
Bantu Girls Domestic Servants Association to protect the interests of
young ex-boarding school women who had been trained for services.101
During 1937 the National Liberation League102 resolved to form a union
for ‘servants’, which is said to have resulted in the ‘short-lived but
influential Domestic Employee’s Union (DEU)’.103 In 1938 a Mr Mvula,
a former journalist, started a Domestic Servants League which collapsed
upon his death but was revived by GJ Coka, a former Communist Party
member.104 According to Hirson, however, the League had little or
nothing in common with trade unionism. In a pamphlet Mvula explained
its purpose as follows:105

In the best interest of Blacks, Africans must support this League because
among other things, it will put an end to the cheeky, skokiaan brewing,
insolent, impertinent and thieving servants, who cast a slur on the name of the
Bantu people by their irresponsible conduct. To relieve the peace of mind of
many White Ladies who are rightly irritated by the conduct of many servants
it is essential for them to give the League assistance. We must get reliable,
trustworthy and efficient servants even if it means fetching them direct from
school.

While there is scope for an organisation of domestic workers to promote

improved communication between workers and employers and (as will be
argued below) assist workers in finding decent work, it may be concluded
that the League acted from the standpoint of employers rather than
workers. In 1938 it wrote letters to employers of domestic workers asking
them to allow their employees to discuss the organisation of the League in
the interests of improving relations between employers and servants.106
The topics of discussion addressed issues of importance to workers,
including illness and benefit funds, training in domestic service and
cooking demonstrations, as well as employers’ concern for ‘an end to

101 B Hirson Yours for the union: Class and community struggles in South Africa (1989) 58.
102 The National Liberation League, formed in 1935, was a radical but short-lived
grouping associated with the Trotskyist movement.
103 Hirson (n 101 above) 58; CF, Bower ‘“Lost in translation?”: Women’s issues in the
struggle for national liberation in South Africa (1910-1985)’ Master's Theses and
Doctoral Dissertations, Paper 320, Eastern Michigan University, 2010 21 http://
commons.emich.edu/cgi/viewcontent.cgi?article=1322&context=theses (accessed 18
June 2013).
104 Hirson (n 101 above) 58; I Berger Threads of solidarity: Women in South African industry,
1900-1980 (1992) 120.
105 Hirson (n 101 above) 58-59. In a similar vein, Mvula wrote in a fund-raising appeal
about ‘the large influx of ignorant and untrained African Servants’ and of the racial
friction that arises ‘whenever house ladies have to deal with impertinent and cheeky
servants’: Berger (n 104 above) 120.
106 Hirson (n 101 above) 51.
288 Chapter 7

thieving’.107 On balance Hirson considered the League to have been little

more than an employment bureau, promising to provide ‘dependable
servants’ and weeding out ‘cheeky’ ones.108 At the end of 1939 it had an
estimated membership of 60 and was placing 40 workers per month with
employers, but soon disappeared from the scene. It is submitted that it left
a confused legacy, on the one hand demonstrating proactiveness in seeking
to play a mediating role between workers and employers but,
unfortunately, deferring to employers’ interests to a degree that prevented
it from developing into an organisation of workers.

5.5.3 The emergence of a new trade union movement

From the mid-1940s to the late 1970s trade union activities were
increasingly constrained by tightening suppression as the apartheid regime
clamped down on opposition. The revival of the mass movement,
including the South African Trade Union Congress, in the 1950s was
overtaken by the decade of repression following the Sharpeville massacre
in 1960.

From the early 1970s, however, a new generation of activists began to

emerge, also in the field of domestic work. An early initiative was the
Domestic Workers and Employers Project (DWEP) founded in 1971,
which set out to bring domestic workers and their employers together.
Although it was criticised for being dominated by employers rather than
workers, this may have been an over-simplification.109 While not a trade
union, DWEP performed functions such as lodging complaints with
employers on behalf of workers which, even today, could be a function that
a trade union of domestic workers might perform. A DWEP worker at the
time commented: ‘Complaints once drew outrage from whites. Now, for
the most part, employers deal thoughtfully with complaints’.110

The emergence of a new, independent trade union movement from the

mid-1970s onwards, however, changed the climate decisively. In 1981 the
South African Domestic Workers Association (SADWA) was established
by former DWEP workers who wanted an exclusive workers’ organisation
and, in 1986, DWEP and SADWA merged to become the South African
Domestic Workers Union (SADWU).111 In addition to industrial unions,
general unions were being formed which differed organisationally and
politically from the traditional workplace-based unions. Some functioned

107 As above.
108 As above.
109 See, eg, interview with Leah Tutu, President of DWEP in 1979: http://
www.disa.ukzn.ac.za/webpages/DC/int19790800.037.067.002a/int19790800.037.06
7.002a.pdf (accessed 18 June 2013).
110 See P van Slambrouck ‘South African servants take crash course in “survival”’
Christian Science Monitor 28 April 1982 http://www.csmonitor.com/1982/0428/
042806.html (accessed 18 June 2013).
111 Visser (n 82 above) 24, citing Ally From servants to workers (n 4 above) 151-152.
 Organising for empowerment 289

as ‘community unions’, arguing that it was impossible to separate

workplace demands from township problems. They accordingly aligned
their struggles to those of township civic associations, setting a precedent
for what came to be known as ‘social unionism’ (discussed in more detail
below).112

The Federation of South African Trade Unions (FOSATU), to which

many of the emerging unions were affiliated, initially resisted this
approach but, at its 1982 congress, resolved to support progressive
organisations and community campaigns provided they were controlled by
workers.113 A number of women leaders participated in these
developments, forcefully raising women’s issues in negotiations, where
their frank discussion of household labour and sexuality in a context of
male domination induced some shock. They went as far as to suggest that
the burden of domestic labour was part of the reason for women’s relative
invisibility amongst the upper ranks of union officials.114 These
developments, clearly, were conducive to the organisation of domestic
workers in a climate of militant political mobilisation.

5.5.4 The birth of SADWU

The formation of the Congress of South African Trade Unions (COSATU)

in 1985, uniting the vast majority of the new trade union movement,
provided an impetus for the increased organisation of women in previously
non-unionised sectors.115 The establishment of the South African
Domestic Workers Union (SADWU) in 1986 (referred to above) took
place on the crest of this wave. It could not be registered due to the
exclusion of domestic workers from the coverage of the Labour Relations
Act at the time.116 However, it brought together a number of domestic
workers’ unions claiming a total membership of about 60 000 and affiliated
to COSATU.117 While advocating basic labour rights for domestic

112 J Baskin Striking back: A history of COSATU (1991) 29.

113 FOSATU also began establishing local or shop steward councils and by the end of
1984 there were 22 area-based ‘locals’ in place. The locals brought together workers
from a particular township or industrial area, workers in the locals provided support to
comrades taking up struggles in neighbouring factories and organised the unorganised
plants. See D Hindson ‘Overview: Trade unions and politics’ in J Maree (ed) The
independent trade unions, 1974-1984: Ten years of the South African labour bulletin (1987)
213; S Friedman Building Tomorrow today: African workers in trade unions, 1970-1984
(1987) 438.
114 Berger (n 104 above) 297-298.
115 G Jaffee ‘Women in trade unions and the community’ (1987) 4 South African Review 76.
116 Sec 2(2), Labour Relations Act 28 of 1956. This exclusion was abolished by the Labour
Relations Act 66 of 1995 (LRA). By then, as will be seen, it was too late for SADWU
to benefit from registration.
117 Jaffee (n 115 above) 76. Only two unions did not join the merger; these were the Black
Domestic Workers’ Union in the then Transvaal and the Domestic Workers’
Association from Port Elizabeth in the Eastern Cape: interview with M Witbooi,
former president of SADWU and current president of SADSAWU, Cape Town, 26
October 2010.
290 Chapter 7

workers, it also aligned unionised workers with the broader anti-apartheid

struggle.118

SADWU was able to build on the firm stand on gender equality taken
at COSATU’s founding congress in 1985 and resolutions that were
adopted to fight all discriminatory treatment of women at work, in society
and in the federation, including equal wages for women, maternity leave
and benefits, childcare, safe transport and an end to sexual harassment.119
In 1989 SADWU spearheaded a Living Wage Campaign calling on
government to introduce laws to protect domestic and farm workers,
including protection against victimisation by their employers for
participating in union activities, and a national minimum wage.120
However, despite its vibrant programme and spirit of activism, the union
had many problems including lack of trade union experience and limited
sources of income, translating into shortages of office space and
equipment.121 Given the low wages earned by domestic workers, funding
has been a perennial challenge in the effort to build up organisation in this
sector. SADWU had been fortunate in gaining access to donor funding for
a number of years to supplement the limited income from subscriptions
collected by hand. After 1994, however, funding from various
international donors, such as the Interchurch Organisation for
Development Co-operation (ICCO) in the Netherlands, came to an
end.122 As a result, staff could no longer be afforded and the union was left
struggling to pay rent and affiliation fees to COSATU.123

COSATU responded by appointing a commission of inquiry that

proposed the following options: (a) SADWU merges with the Transport &
General Workers Unions (TGWU), South African Catering &
Commercial Workers Unions (SACCAWU) or National Education,
Health & Allied Workers Union (NEHAWU); (b) SADWU waits until the
formation of the new COSATU service sector union and then affiliate; or
(c) SADWU disbands. The commission then initiated a national congress
in 1996 where it was decided to disband the union.124 Understandably, this
came as a deep disappointment to many who had built up the union and

118 H Britton et al (eds) Women’s activism in South Africa: Working across divides (2009) 128.
119 L Lawson (ed) No turning back: Fighting for gender equality in the unions (1992).
120 See Speak ‘Domestic Workers marching for their rights’ Labour Research Service
(1990) www.lrs.org.za/pdfs/wg/strug/a4_8.pdf (accessed 28 October 2010).
121 Interview with Florence de Villiers, former leading member of DWA and SADWU,
Cape Town, 4 November 2010.
122 See R Nyman ‘The death of SADWU: The birth of a new organisation?’ (1997) 21
South African Labour Bulletin 34.
123 Florence de Villiers (n 121 above) commented: ‘Unlike other unions in COSATU, it
was hard for SADWU to pay the affiliation fees, and some comrades never wanted to
understand the situation of a union of domestic workers’: telephonic interview,
9 November 2010.
124 Nyman (n 122 above).
 Organising for empowerment 291

believed that it had the capacity to continue.125 However, by that stage

finances were no longer the only challenge. By the end of 1994, Nyman
notes, the union was dealing almost exclusively with internal conflicts and
by 1995 there was a breakdown in communication among national office-
bearers.126 Another important lesson of organisation was being
demonstrated: in the absence of clear agreement on policy, strategy and
tactics, organisational setbacks can lead to debilitating conflict even while
the need for effective organisation remains as great as ever.

5.5.5 SADSAWU

Some former leaders of SADWU remained convinced of the need to create

an organisational home for women and men in the domestic work
sector.127 On 22 April 2000 the South African Domestic Service and Allied
Workers Union (SADSAWU) was launched in Durban. Like its
predecessor, however, it would experience major challenges in sustaining
itself, culminating in its deregistration by the Department of Labour in
2011.128 While not a decisive impediment, in that it does not prevent
SADSAWU from continuing to operate, it is undoubtedly a setback in that
it removes the benefits of registration and thus adds to the challenges of
organising under already difficult conditions. It is therefore important to
understand the reasons for this experience as a basis for developing a more
viable organisational model.

In essence, it is submitted, SADSAWU’s deregistration demonstrates

the lack of compatibility between organisation in the domestic sector – and
other sectors characterised by high levels of non-standard work – and the
industrial model of trade unionism. The constitutions and organising
strategies of SADSAWU and its predecessor, SADWU, were
fundamentally no different from those of mainstream industrial unions in
COSATU which served as points of reference, notwithstanding the vast
differences in the conditions under which they operate. This alone,
combined with a lack of resources to maintain an administrative
apparatus, made compliance with its constitution practically impossible
and paved the way for deregistration.

125 Florence de Villiers, eg, wrote a letter to COSATU and other COSATU affiliates
declaring that domestic workers were still ‘slaves’ and that it was necessary for
SADWU to remain in COSATU: De Villiers (n 121 above).
126 Nyman (n 122 above).
127 Interview with Hester Stephens, current SADSAWU President, Cape Town,
9 November 2010.
128 Registration of a trade union in terms of sec 96 of the LRA confers certain statutory
rights and benefits (eg, the right to belong to a sectoral bargaining council) but is not a
precondition for the right to organise. Registered trade unions must report to the
Department of Labour and submit audited financial statements in the interests of
accountability: LRA, secs 98-100.
292 Chapter 7

But the question goes further. There are stark differences between the
conditions of mass mobilisation which had buoyed up the growth of
SADWU in the 1980s and those of the past decade. ‘With reduced energy
from a decimated membership,’ Ally comments, SADSAWU functions
mainly through ‘the activity of its national leadership’.129 The very
successes achieved by the anti-apartheid struggle and the trade union
movement, including SADWU, against a hostile state in gaining political
inclusion and improved working conditions have set the scene for the
situation in which SADSAWU finds itself.130 Almost all SADWU’s
demands have found expression in post-apartheid labour legislation and a
sectoral determination which, amongst other things, establishes a
minimum wage for the sector.131 The union, Ally argues, was thus
relegated to the role of an intermediary between the government and the
workers and a conduit through which the Department of Labour channels
information to workers.132 In effect, she concludes, ‘the state became the
main custodian and protector of the collective interests of domestic
workers’.133

It is arguable that these processes of demobilisation combined with the

obstacles to growth arising from the industrial union model brought about
the impasse which led to SADSAWU’s deregistration in 2011.

5.5.6 A provisional balance sheet

It is submitted that Ally’s insightful analysis of the difficulties affecting

trade unions in the domestic sector over recent years134 should be qualified
in two respects. First, not all the reforms demanded by SADWU have been
achieved. Numerous limitations in the regulatory framework were noted
in Chapters 3, 4 and 5 (above). Crucially, it has been argued that the
organisational and collective bargaining rights enshrined in the LRA are of
limited value in the context of the domestic employment relationship. In
effect, domestic workers and other non-standard workers have still to
achieve effective implementation of their right to freedom of association as
well as substantive equality in the enjoyment of their right to fair labour
practices. While less acute than the legal exclusion experienced in the
1980s, these disadvantages give rise to grievances that remain to be
addressed.

129 Ally ‘Domestic worker unionisation in post-apartheid South Africa’ (n 4 above) 17.
See also S Pandit ‘Legal protection of domestic workers: Could we learn from South
Africa?’ Research paper presented on behalf of Social Law Project to the International
Centre for Development and Decent Work, University of Kassel, January 2011 23-30
http://www.dwrp.org.za/images/stories/DWRP_Research/shereen_pandit_icdd_pa
per_final_version_11-01-20.pdf (accessed 6 March 2013).
130 Ally ‘Domestic worker unionisation in post-apartheid South Africa’ (n 4 above) 7.
131 See SD 7 (n 10 above). For further discussion, see part 5.2.8.2 of Chapter 3 (above).
132 Ally ‘Domestic worker unionisation in post-apartheid South Africa’ (n 4 above) 13-18.
133 Ally ‘Domestic worker unionisation in post-apartheid South Africa’ (n 4 above) 13.
134 As outlined in part 5.5.5 of this chapter (above).
 Organising for empowerment 293

This unfinished agenda points to the second qualification: any

suggestion that the processes of demobilisation are irreversible may be
premature. Specifically, to the extent that SADSAWU’s impasse arose
from limitations imposed by an inappropriate organisational model, its
ability to mobilise support is dependent on overcoming those limitations.
At the time of writing the union is engaged in re-assessing the nature of the
challenges it needs to address and seeking to identify organisational forms
appropriate to the sector. Should an effective alternative to the industrial
trade union model be identified that is better capable of accommodating
the present needs and aspirations of domestic workers, it is submitted that
(to use Ally’s term) the ‘vitality’ associated with SADWU’s pioneering
activities against the apartheid state could be revived in new forms.

In the remainder of this chapter a number of alternative forms of

organisation that have been developed by domestic and other marginalised
workers internationally will be looked at. The overview does not purport
to be exhaustive; it is intended only to illustrate some of the options that
are available and identifying factors on which their effectiveness depends.
Following Ally’s paradigm, it will include examples of ‘associational’
forms of organisation together with what has been termed ‘hybrid’ forms.
While none of these may offer a complete precedent for the organisation
of domestic workers in South Africa, the strengths of various models may
contribute to the development of an organisational model for the
empowerment of domestic workers in the post-SADWU period.

6 New strategies to organise the ‘unorganisable’:

Associational and hybrid models

The domestic sector remains one of the least organised in South Africa
despite progressive labour laws and persistent efforts at building trade
union organisation over the past thirty years.135 This is in line with the
situation internationally. The achievements discussed above have in the
main been isolated, serving as examples rather than trends. Though trade
unions acknowledge the need to organise domestic and other vulnerable
workers, many defer to ‘the rhetoric that the sector is unorganisable to
justify the failure of sustained unionisation for domestics’.136

However, the rhetoric is not without a real foundation. Compared to

large-scale workplaces, the atomised nature of domestic work does not
lend itself to organisation along traditional trade union lines. WIEGO

135 Social Law Project ‘Domestic workers: Decent work for all’ Paper prepared for the
South African Domestic Services and Allied Workers Union (SADSAWU) (January
2010) http://www.dwrp.org.za/images/stories/DWRP_Research/lrs_paper.pdf
(accessed 20 May 2013).
136 Ally (n 73 above) 190.
294 Chapter 7

sums up the position around the world as follows:137

Most domestic worker are not organised into trade unions and have no
representative voice. In some countries they are not allowed to join trade
unions. Even where they have the legal right to organise, because they are
isolated and vulnerable, it is not easy for them to do so. Where they do
organise into unions these organisations struggle to grow and sustain
themselves. Generally, established unions and national centres have not
prioritised organising domestic workers precisely because they are invisible,
are women in ‘low status’ jobs, seemingly without collective power, difficult
to organise using traditional approaches and a challenge for financial
sustainability.

These difficulties suggest that the organisational challenge is not

measurable simply in terms of effort or resources, calling for ‘more of the
same’. It is a strategic challenge, calling for new ideas and a new approach
if the acknowledged need of organising non-standard workers into an
effective force is to be addressed. COSATU’s September Commission,138
as far back as 1997, recognised increasing labour market flexibility as one
of the key characteristics of globalisation and argued that it was necessary
for unions to develop organising strategies targeting vulnerable
workers.139 It identified two options for labour – either failing to organise
the growing layers of ‘flexible’ workers, resulting in unions’ bargaining
position being undermined, or committing itself to organising those
workers and creating a floor of acceptable conditions to prevent ‘flexibility
from undermining workers’ rights’.140 The Commission supported the
second option, and also recommended the establishment of what it called
a ‘property services affiliate’ incorporating security, contract cleaning and
domestic workers.141 By that time the COSATU domestic workers
affiliate, SADWU, had collapsed.142

The report and its recommendations were accepted at COSATU’s

1997 National Congress and re-endorsed at a Special National Congress

137 Women in Informal Employment: Globalizing and Organizing (WIEGO) ‘Informal

Workers In focus: Domestic Workers’ http://www.wiego.org/publications/
FactSheets/WIEGO_Domestic_Workers.pdf (accessed 20 May 2013). Or, as a
Mozambiquan union organiser put it: ‘imagine organising domestic workers flat-by-
flat in all these buildings in Maputo’: cited by Castell-Branco A site of struggle (n 90
above).
138 The September Commission was set up by COSATU in 1996 to assess the federation's
position in relation to the political and economic challenges confronting the trade
union movement in a post-apartheid South Africa.
139 Report of the September Commission on the Future of the Unions to the Congress of
South African Trade Unions, August 1997, Chapter 7 http://www.cosatu.org.za/
show.php?ID=2148 (accessed 30 April 2012).
140 September Commission Report (n 139 above) ch 7.2.2(b). See also E Webster ‘Trade
Unions and the challenge of the informalisation of work’ in S Buhlungu (ed) Trade
unions and democracy: COSATU workers’ political attitudes in South Africa (2006) 21.
141 Webster (n 140 above) 29.
142 See part 5.5.4 of this chapter (above).
 Organising for empowerment 295

convened two years later.143 Fourteen years on it can be safely stated that
COSATU has had limited success in following through on these
recommendations. It has been suggested by Webster that this is primarily
due to the fact that new organising strategies continue to be undermined
by the limitations imposed by ‘industrial-style unionism’.144

The pattern has continued. In 2012, for example, the South African
Municipal Workers’ Union (SAMWU), an affiliate of COSATU,
submitted a resolution to COSATU’s National Congress dealing with
long-standing resolutions on demarcation and mergers within COSATU
which had not been implemented. It submitted that the problem could not
be solved by simply insisting on implementation. These older resolutions,
SAMWU argued, did not reflect more recent changes arising from shifts in
production to smaller networks of entities and outsourced services, nor the
position of old (domestic and farm workers) and new strata (fast food and
cell-phone outlets, call-centre and more) of precarious workers. The union
called for the rescission of all previous resolutions relating to mergers and
for engagement amongst affiliates to re-examine the problems of
organisation, demarcation and building a stronger COSATU. The
resolution was not debated.

Against this background there has been an upturn in organisation by

domestic and other vulnerable workers in many parts of the world and, to
a lesser extent, in South Africa, in some cases supported by industrial
unions in new alliances with NGOs and other formations.145 These cover
a variety of models with membership-based organisations at one end of the
spectrum and, at the other, NGOs or non-profit organisations which
primarily provide advocacy and social welfare support to domestic
workers.146 The latter have often emerged in the context of migrant worker
communities, grappling with issues discussed in Chapter 6, and are seen by
Ally as a major form of domestic worker organisation.147 There is,
however, growing evidence of organisations which combine the ‘features
and strategies of both member based organisations and NGOs in different
mixes’.148 These strategies range from advocacy to direct representation in
labour matters even when not necessarily recognised in law as such.149

We first look at some examples of such organisational initiatives

internationally before considering the implications for South Africa.

143 ‘Consolidation of COSATU for the new millennium: Organisational renewal’

Declaration adopted by COSATU Special Congress, 20 August 1999 http://
www.cosatu.org.za/docs/declarations/1999/dec-orgr.htm (accessed 20 June 2013).
144 Webster (n 140 above) 26.
145 See, in general, the discussion by Bonner (n 15 above).
146 Bonner (n 15 above) 5.
147 Ally (n 73 above) 192.
148 Bonner (n 15 above) 5.
149 Bonner (n 15 above) 5-6.
296 Chapter 7

6.1 Worker Centres

‘Worker centres’ have been established in a number of cities in the United

States. According to Fine, worker centres are community-based mediating
institutions that provide support to communities of low-wage workers who
become their members.150 Unlike unions, worker centres are not
workplace-based and do not focus on organising the majority of workers in
individual work sites, nor do they negotiate collective bargaining
agreements. Often ethnicity and language, rather than occupation or
industry, are the primary basis for organisation from a member’s point of
view – a factor which is clearly significant in multi-ethnic societies.

Worker centres may be described as hybrid organisations in that they

combine elements that are typical of different types of organisation. They
resemble NGOs in that they raise most of their budgets from private
donors and therefore do not depend on workers to support them
financially. Most worker centres are reluctant to make payment of dues a
prerequisite for members to receive services or participate in the
organisation, as members may be too poor to make regular contributions.
However, they are also membership-based, and workers have to join as
members to qualify for the services of the centres. Membership
furthermore comes with obligations: workers are required to take courses
and/or commit to serving on a committee and a certain number of
volunteer hours to qualify. Indeed, it is argued that ‘[t]he combination of
organising, and service and advocacy distinguishes these centres from
other centres and services for disadvantaged workers’.151 

The services provided by worker centres are directly related to their

members’ working lives. The main services are summarised as152

(1) service delivery such as legal representation [for example, to recover

unpaid wages], English classes, worker rights education, access to health
clinics, bank accounts and loans; (2) advocacy in various forms such as
researching and exposing conditions in low-wage industries, working with
government agencies to improve monitoring and grievance processes, and
lobbying for new laws and changes to existing ones; and (3) organising
ongoing groups and engaging in leadership development among workers to
take their own action for economic and political change.

Other activities include:

• intervening with employers on behalf of workers;

150 J Fine ‘A marriage made in heaven? Mismatches and misunderstandings between

worker centres and unions’ (2007) 45 British Journal of Industrial Relations 335.
151 Fine (n 150 above) Abstract http://www.voced.edu.au/content/ngv13216 (accessed
20 May 2013).
152 As above.
 Organising for empowerment 297

• bringing economic pressure to bear on employers and industries (for

example, by organising pickets, direct actions and boycotts); and
• operating quasi-hiring halls where, rather than standing in the street and
crowding around as contractors pull up, workers have established systems
for job assignments. Some centres ask contractors who hire day labourers
to sign written contracts that commit them to specific wages and
conditions of employment.

There is a clear connection between various of these activities and the

building of workplace-based organisation. Although Fine describes the
relationship between worker centres and unions as ‘a match made in
heaven’, cooperation between them has been limited.153 However, both
Fine and Givan154 argue that worker centres and unions could be key
strategic alliance partners. While worker centres are not able to bargain
collectively, they have a strong focus on legal rights and mutual insurance.
They are also in a good position to assist workers in forming or joining
unions that could bargain collectively.

6.2 Community-based organisations of migrant domestic

workers

Some of the organisations described below correspond to the

‘associational’ model identified by Ally. Mujeres Unidas Y Activas (‘Women
United and Active’) in California and the Association of Philippine
Migrant Workers Samahan (‘Unity’) in Belgium, for example, emerged
from community-based organisation among immigrant workers and
encourage active member participation. Both run activities and
programmes on, amongst others, financial and computer literacy and the
rights of undocumented migrant workers. Samahan members have also set
up a co-operative scheme for savings and pensions.155

Other community-based organisations of this nature may be described

as ‘hybrid’ organisations in that they have developed in association with or
built links with trade unions, thus to some extent bridging the gap between
organised labour and the community. The obvious advantage of such
alliances is that trade unions can draw on community support, and vice
versa, in mobilising effective campaigns.156 The Argentinian trade union
federation Central de los Trabajadores Argentinos (CTA), for example, has

153 Fine (n 150 above) 336.

154 RK Givan ‘Side by side we battle onward? Representing workers in contemporary
America’ (2007) 45 British Journal of Industrial Relations 829.
155 Bonner (n 15 above) 6. See also Ally (n 73 above) 191-195 for further examples of what
she terms the ‘association model’.
156 This generalisation is, of course, subject to tactical considerations. See S Early
Embedded with organized labor (2009) for discussion of the ‘Coalition of Immokalee
Workers’, a community-based organisation of low-paid workers in Florida, and its
successful boycott of the fast-food chain Taco Bell which led to improved wages and
conditions for workers employed in Taco Bell’s supply chain. According to Leary, ‘not
298 Chapter 7

recognised the emergence of new social movements, such as tenants’

associations, territorial movements, the women’s movement and human
rights movements.157 Of particular interest from a South African
perspective is the interaction of the CTA with the landless movement. A
Canadian delegate to a CTA congress described it as follows:158

The landless movement has been active in taking unused land and finding
materials and people with the skills to build shelters for the mushrooming
ranks of the homeless. Along with shelter come the responsibilities of food
distribution, sanitation and health care. The CTA works with the landless
movement, helping to provide organisation and political influence.

From the perspective of the CTA this may be seen as an illustration of

‘social movement unionism’, which is discussed in more detail in the next
part of the chapter. At this point, however, we are concerned with the
challenges of organisation from the standpoint of the marginalised
(domestic) workers, often from migrant communities, either on the basis
of ethnicity or in alliance with trade unions or other social movements.
Examples from four different parts of the world are looked at.

6.2.1 Kalayaan and J4DW

Kalayaan provides a working example of NGO, community organisation

and trade union collaboration. Kalayaan, which is registered as a charity,
was formed in 1987 through the intervention of activists lobbying for the
rights of migrant domestic workers.159 Following a long campaign, a
special visa for domestic workers that allowed them to change employers
in the UK was introduced in 1997 but was reversed by the incoming
Conservative government in 2010. These changes required Kalayaan to be
flexible, shifting its focus from campaigning for workers’ rights prior to
1997, to assisting workers to exercise their rights post-1997, then back to
campaigning against the Conservative government’s policy changes before

156 being a union was critically important in winning broad support for this boycott. The
CIW could [successfully] cast itself as made up of poor, immigrant workers struggling
for a just future, without the complicating issues of being associated with ‘special
interests’ or ‘big labour’: E Leary ‘Immokalee workers take down Taco Bell’ (2005) 57
Monthly Review http://monthlyreview.org/2005/10/01/immokalee-workers-take-
down-taco-bell (accessed 20 May 2013).
157 J Olivera ‘The response of Argentinian workers to neo-liberalism and globalisation:
New forms of organisation’ A paper presented to the ILRIG Conference, April 2009.
158 J Paré ‘CTA (Central de los Trabajadores Argentinos) convention in Argentina, December
2002’ Conference report (undated) http://www.caw.ca/en/trabajadores-argentinos-
convention-in-argentina-december-2002.htm (accessed 30 June 2013). On the
involvement of the CTA in developing alternative forms of economic enterprise, see
V Alonso ‘Argentina: Building a solidarity economy’ Inter Press Service 8 February 2005
and related articles http://ipsnews.net/new_nota.asp?idnews=27361 (accessed 30
June 2013).
159 See Kalayaan website http://www.kalayaan.org.uk/. For a brief background, see
J Moss ‘Kalayaan submission to the Universal Periodic Review’ (October 2011) http:/
/lib.ohchr.org/HRBodies/UPR/Documents/Session13/GB/Kalayaan_UPR_GBR_
S13_2012_Kalayaan_E.pdf (both accessed 20 June 2013).
 Organising for empowerment 299

and after 2010.160 This flexibility, it is submitted, is also indicative of a

principle that must be fundamental to every organisation serving groups of
workers living under insecure and vulnerable conditions: it has to be needs-
driven, addressing issues that are of major importance to workers at any
given time rather than providing a predetermined service of its own, with
the capacity to adapt its intervention when circumstances change.

A second factor in Kalayaan’s success has been its ability to create a

working relationship with the trade union movement. This arose from the
establishment of an organisation called ‘Justice 4 domestic Workers’
(J4DW)161 by a group of migrant domestic workers in association with
UNITE (the UK’s largest union).162 In practice there is significant cross-
membership between the leadership of Kalayaan and J4DW, based on a
long history of collaboration between Kalayaan and the forerunner of
J4DW.163 The latter exists both inside and outside the union: while
UNITE provides it with resources such as an office, J4DW is not an
official union branch and its members are not expected to comply strictly
with union rules, such as payment of dues.164 The result is an effective
division of labour between the two organisations. While Kalayaan does
not engage with the setting of terms and conditions of employment, J4DW
has concentrated on the implementation of ILO Convention 189 and trains
workers in relevant aspects of employment law to enable them to conduct
their own cases in the Employment Tribunals.165 Conversely, Kalayaan
offers activities to empower migrant domestic workers, such as English-
language classes and first-aid training, together with services such as
assistance with cases against employers in the Employment Tribunals.166

160 Interview with Jenny Moss, community advocate, Kalayaan, London, 17 July 2012.
161 See J4DW website http://www.j4dw.org/ (accessed 20 June 2013). Justice for
Domestic Workers describes itself as a ‘self-help group for migrant domestic workers’
from Asia and Africa who work in private houses in the UK. For a moving account of
the activities of J4DW, see M Begonia ‘One year on: The return to Victorian-era
slavery for UK domestic workers’ 7 April 2013 http://www.j4dw.org/news/one-year-
on (accessed 20 June 2013). ‘One year’ refers to the year since the repeal of the
domestic workers’ visa took effect in April 2012.
162 See the UNITE website http://www.unitetheunion.org/ (accessed 20 June 2013).
163 Interview with Dr Bridget Anderson, Oxford, 19 July 2012. See also B Anderson Doing
the dirty work? The global politics of domestic labour (2000) 94ff.
164 Such flexibility, it is submitted, is essential to any relationship between an organisation
of domestic workers and trade unions, based on a mutual understanding that domestic
workers are in a position that is different from that of most other workers: Interview
with Jenny Moss (n 160 above).
165 Interview with Dr Bridget Anderson (n 163 above). Employment Tribunals,
established in terms of the UK Employment Act of 2008, perform a dispute-resolution
function comparable to the arbitration function of the CCMA. On the employment
rights of migrant domestic workers and the protection of their rights, see N Clark & L
Kumarappan ‘Turning a blind eye: The British state and migrant domestic workers’
employment rights’ Working Lives Research Institute, London Metropolitan
University, August 2011 http://workinglives.org/fms/MRSite/Research/wlri/
WORKS/TaBE% 20final%20report.pdf (accessed 20 June 2013).
166 Interview with Jenny Moss (n 160 above).
300 Chapter 7

6.2.2 SUMAPI

Another example of a ‘hybrid organisation’ providing numerous support

services, including training, to domestic workers is the National Linkage
Association of Domestic Workers in the Philippines (SUMAPI).167
SUMAPI is an NGO which originated as an organisation offering refuge
for abused domestic workers and later evolved into an organisation
providing training, campaigning against child labour and seeking to ensure
that the labour rights of domestic workers in the Philippines are enforced.
It works with partner associations in order to provide the above and other
social services to members.

SUMAPI claims a membership of 5 000, organised into 17 chapters

based in parks, waiting areas, churches and schools across the country.168
In addition to training and awareness programmes, it provides
opportunities for domestic workers to become involved in leadership
activities within SUMAPI.

More research is needed to gain a detailed understanding of the

operation of SUMAPI. The model it adopted, however, has aspects that
may be instructive from a South African perspective in the development of
service organisations providing support to domestic workers or to a union
of domestic workers. Within the framework of a donor-funded NGO
offering service to domestic workers, the model also provides for capacity-
building amongst domestic workers and involving them in the running of
the organisation. Such an approach is clearly compatible with organisation
of domestic workers committed to empowerment and the values of
transformative constitutionalism.

6.2.3 Domestic Workers United

One of the most active associational organisations focusing on domestic

workers, Domestic Workers United (DWU), is based in New York City.
Established in 2000 through a collaboration of groups advocating the
rights of domestic workers,169 it describes itself as ‘an organization of
Caribbean, Latina and African nannies, housekeepers, and elderly

167 Samahan at Ugnayan ng Manggagawang Pantahanan sa Pilipinas in Filipino: see Sumapi

website http://www.oncan.org/SUMAPI/SUMAPI.htm (accessed 20 June 2013).
For more information see ‘Completion report: Strategic planning for the Samahan at
Ugnayan ng mga Manggagawang Pantahanan sa Pilipinas (SUMAPI)’ organised by
SUMAPI with support from the ILO-DOMWORK Project (undated) http://
www.ilo.org/wcmsp5/groups/publicasia/---ro-bangkok/---ilo-manila/documents/ge
nericdocument/wcms_126012.pdf (accessed 20 June 2013).
168 Similarly, given the difficulties of reaching domestic workers at their places of work,
SADSAWU (discussed in part 5.5.5 of this chapter) has undertaken recruiting
activities in malls where domestic workers are sent to do shopping: personal
communication by SADSAWU official, 2009.
169 See DWU ‘History & Mission’ http://www.domesticworkersunited.org/index.php/
en/about (accessed 20 June 2013).
 Organising for empowerment 301

caregivers’.170 Its activities include skills training, a legal clinic, leadership

training and unemployed workers’ support. Training programmes include
certificated courses in child care, household management171 and an
Advanced Level Leadership Training, covering topics such as ‘basic
political economy and globalization’ and skills such as ‘meeting
facilitation, public speaking and campaign development’.172 It is
submitted that the issue of certificates, which can be added to a worker’s
curriculum vitae, contributes to the recognition of domestic work as skilled
work while also adding to workers’ confidence in their ability to improve
their circumstances, both personally and collectively.

An important innovation by DWU in collaboration with the New

York State Department of Labour is the establishment of a 24-hour ‘Know
your Rights’ hotline, providing information on topics such as minimum
wages, taxes, unemployment insurance and permissible deductions from
wages.173

One of the first campaigns launched by DWU led to the enactment of

Local Law 33 and Resolution 135 by the New York City Council in 2003,
requiring employment agencies to inform domestic workers of their rights
and employers hiring domestic workers through agencies to sign a
statement acknowledging the worker’s rights.174 Ally, however, cautions
that achievements such as this ‘can sometimes be at the expense of their
unionisation’. In the campaign, she goes on to explain,175

[u]nions competed with an association of legal advocacy groups, law school

clinics, ethnic or immigrant advocacy groups, and even public entities such as
the New York State Attorney General. In this ‘tetralogy of representation,’ as

170 DWU is affiliated to the National Domestic Workers Alliance, an association of 29

domestic workers’ organisations across the USA: http://www.domesticworkers.org/.
It is also allied to the United Workers Congress, consisting of organisations of workers
who are legally or practically excluded from the operation of the National Labour
Relations Act of 1935, the principal statute regulating collective bargaining in the
USA: http://www.nlrb.gov/national-labor-relations-act (both accessed 21 June 2013).
171 DWU ‘Household management 101 & 102’ http://www.domesticworkersunited.org/
index.php/en/workforce-trainings/item/93-household-management-101-102 (access-
ed 21 June 2013).
172 See DWU ‘Programs’ http://www.domesticworkersunited.org/index.php/en/our-
work/programs (accessed 21 June 2013).
173 DWU ‘Domestic workers: Know your rights’ http://www.domestic
workersunited.org/index.php/en/2012-01-07-00-45-55. This initiative follows the
enactment of the Domestic Workers Bill of Rights by the New York state legislature in
2010, driven by the National Domestic Workers Alliance: see New York State
Department of Labor ‘Domestic Workers Bill of Rights’ http://www.labor.ny.gov/
legal/domestic-workers-bill-of-rights.shtm (both accessed 21 June 2013).
174 CE Hobden ‘Winning fair labour standards for domestic workers: Lessons learned
from the campaign for a domestic worker bill of rights in New York State’ ILO, Gurn
discussion paper no 14 (2010) 12 http://www.gurn.info/en/discussion-papers/no14-
jun10-winning-fair-labour-standards-for-domestic-workers-lessons-learned-from-the-
campaign-for-a-domestic-worker-bill-of-rights-in-new-york-state (accessed 21 June
2013).
175 Ally (n 73 above) 197.
302 Chapter 7

Hyde calls it, unionisation was threatened, not enhanced.176 This type of
organising potentially defeats the purposes of the collective organisation of
workers, since it does not empower a group of workers to take ownership of
their own sustained representation. ‘The advocacy groups are self-
designated’, argues Hyde, generating a system of representation that is often
not self-sustaining beyond particular advocacy campaigns. As a result, the
‘association model’, while not always seeking to substitute for union-based
organising, can at times undermine the cause of unionism.

This criticism, while serious, needs to be contextualised and it is suggested

that the qualifications expressed by Ally are well-founded. On the one
hand, the existence of organisations such as DWU is due largely to the lack
of what Hyde terms ‘traditional union representation’ in the domestic
sector.177 An organisation such as DWU has proven to be self-sustaining
and capable of organising domestic workers while traditional unions, with
some notable exceptions referred to above, have largely remained aloof.178
This is not to apportion blame; it is to reiterate that the structure and ‘core
business’ of industrial unions, even in the services sector, may not be
compatible with the activity, investment of resources and sources of
funding appropriate to the organisation of domestic workers. The
differences in programme, organisational structure and mode of operation
between an organisation such as DWU and a mainstream industrial union
illustrate the point. At the same it highlights the importance of avoiding
divisions of the kind suggested by Hyde by seeking the greatest possible
organisational congruity and functional unity in the ongoing development
of domestic workers’ organisation in South Africa.

6.2.4 The Centre for Domestic Training and Development

In the African context, an example of a non-union organisation serving

domestic workers is the Centre for Domestic Training and Development
(hereafter CDTD) in Kenya, which provides support services and skills
training for women from disadvantaged backgrounds who will be

176 The reference is to A Hyde ‘Who speaks for the working poor? A preliminary look at
the emerging tetralogy of representation of low-wage service workers’ (2004) 13 Cornell
Journal of Law and Public Policy 3, also at http://law.bepress.com/cgi/
viewcontent.cgi?article=1012&context=rutgersnewarklwps (accessed 21 June 2013).
177 Hyde concedes that ‘[n]o doubt the dominance of advocacy and governmental
organizations reflects the passivity of the unions in New York. From the unions’
perspective, small shops like greengrocers, let alone domestic workers, are expensive to
organize and service’: Hyde (n 176 above) 21. Thus, it is pertinent to consider to what
extent ‘competition’ between trade unions and community organisations is due to
unions belatedly joining campaigns initiated by the latter.
178 It is noteworthy, however, that the National Domestic Workers Alliance signed a
cooperation agreement with the AFL-CIO (the major federation of US trade unions)
in 2011: ‘AFL-CIO partners with Domestic Workers Alliance, National Guestworkers’
Alliance’ (10 May 2011) http://www.aflcio.org/Blog/Organizing-Bargaining/AFL-
CIO-Partners-with-Domestic-Workers-Alliance-National-Guestworkers-Alliance
(accessed 21 June 2013).
 Organising for empowerment 303

undertaking domestic work.179 It is, however, linked to the Kenya Union

of Domestic, Hotels, Education, Institutions, Hospitals and Allied
Workers (KUDHEIA), whose progress in organising domestic workers
was discussed above.180 It is an NGO rather than a member-based
organisation, run by a board and with 15 full-time staff members in
2010.181

In addition to its training activities, CFDT has launched a successful

programme for rescuing and rehabilitating girls from dangerous domestic
work situations.182 Importantly, it also assists with placement of domestic
workers in appropriate workplaces and monitors the workers placed in
order to ensure their wellbeing.183 These examples indicate that an NGO
working in collaboration with a trade union organising domestic workers
can offer a range of valuable services which are empowering and
supportive of trade union organisation, also in an African context.
Whether or not a union of domestic workers in South Africa would be able
to offer similar services to its member or whether, as with KUDHEIA, it
would be expedient to rely on an associated organisation to do so, is a
practical question to be decided by the organisations concerned. The
KUDHEIA-CFDT model, however, offers the advantages of functional
specialisation and simplified management which, for organisations with
limited resources, can be extremely important.

6.3 Organising domestic workers in cross-sectoral

organisations

6.3.1 SEWA

The Self-employed Women’s Association (SEWA) in India provides a

much-analysed example of a member-based organisation of informal
women workers, own-account workers in particular, operating in different
sectors of the economy.184 Informal workers constitute 94 per cent of the
Indian labour force and are a vibrant part of the economy, often with
multiple occupations. SEWA’s organising approach is correspondingly a

179 CDTD offers courses in labour relations and rights, life skills, entrepreneurship,
housekeeping, laundry, child care, food production and service, literacy and
continuing education, and HIV/AIDS education: http://www.cdtd.org/?page
_id=223 (accessed 24 May 2013).
180 See part 5.2 of this chapter (above).
181 K Woolf & The Global Fund for Children ‘Case Study: The Centre for Domestic
Training and Development’ (December 2010) 2 https://www.globalfund
forchildren.org/wp-content/uploads/2012/07/GFCCaseStudyDec10-2.pdf (accessed
21 June 2013).
182 Woolf & The Global Fund for Children (n 181 above) 1, 4-6.
183 Woolf & The Global Fund for Children (n 181 above) 3.
184 See http://www.sewa.org/ (accessed 21 June 2013). Studies of SEWA include K Rose
Where women are leaders: The SEWA movement in India (1992) and DW Crowell The
SEWA movement and rural development: The Banaskantha and Kutch experience (2003). See
also Bonner (n 15 above) 8-9.
304 Chapter 7

broad one, spanning the establishment of co-operatives, self-help groups,

village committees and district associations. The members of SEWU have
even established a co-operative bank.185 Domestic workers are described
as one of its ‘more recent organising focuses’.186

Bonner suggests that there are advantages to organising informal

workers – in other words, outside the framework of labour legislation –
including the possibility of setting up ‘innovative structures and
programmes that are less patriarchal and more open to change than
traditional unions’.187 She adds that ‘[t]he advantage of organising as
women is the confidence this brings and the blossoming of women
leadership. Certainly this seems to be the case with SEWA which has
strong women leaders at all levels’.188

SEWA did, however, struggle for many years to gain recognition by

the trade union movement and the Indian government. It was the decision
of the ITUC to admit SEWA as an affiliate ‘which gave recognition to
SEWA as a legitimate trade union centre’ and signified acceptance of self-
employed workers, notwithstanding their lack of ‘employee’ status, as
‘workers with a rightful place in the trade union movement’.189

SEWA classifies domestic workers as self-employed in the category of

‘manual labourers and service providers’.190 It has campaigned for
improvement in the conditions of domestic workers – for example,
securing the inclusion of catering and domestic workers under the state
Welfare Board for Unorganised Sector Workers191 – and also provides
services such as training for domestic workers.192 More research is needed
to gain an adequate understanding of SEWA’s extremely extensive
operations and its impact on the domestic sector. It is, however, doubtful
to what extent it offers a model for organising domestic workers in South
Africa. A South African movement inspired by SEWA, the Self-Employed
Women's Union (SEWU), worked on similar lines – although on a much
smaller scale – to organise women considered to be self-employed in
occupations such as home-based production, small-scale farming, street

185 For SEWA’s ‘sister organisations’, see http://www.sewa.org/Sister_Organization.asp

(accessed 21 June 2013).
186 Bonner (n 15 above) 8.
187 Bonner (n 15 above) 8.
188 Bonner (n 15 above) 38.
189 Bonner (n 15 above) 9.
190 SEWA ‘Annual Report 2008’ 10 http://www.sewa.org/Annual_Report_2008-
English.pdf (accessed 21 June 2013).
191 SEWA Annual Report (n 190 above) 25.
192 For an account of this and other activities undertaken by SEWA in the domestic sector
in Kerala state, see N Nayak ‘Professionalising domestic services: SEWA Kerala’
Labour File (Vol 8 Nos 1 & 3, undated) http://www.labourfile.org/
ArticleMore.aspx?id=550 (accessed 21 June 2013).
 Organising for empowerment 305

trading and part-time domestic work.193 Given that domestic workers are
not generally considered to be ‘self-employed’ in South Africa and that the
emphasis since the 1980s has been on securing their rights as employees, it
is not surprising that SEWU does not appear to have organised significant
numbers of domestic workers. It is, however, submitted that the
organisational methods and empowering approach of SEWA, outlined
above, deserve closer study by trade unions as well as support
organisations in the sector.

6.3.2 The Korean Women Workers’ Association

South Korea offers another example of domestic worker organisation in a

mixed-sector movement, but under very different conditions from India.
South Korea is classified as a high-income developed country, ranking
among the so-called G20 countries. The Korean Women Workers’
Association (KWWA) was formed in 1987 specifically to organise women
into the existing trade unions.194 The country had not been left untouched
by globalisation; women were being employed in large numbers in
insecure jobs and on less favourable terms than the men whom they
replaced. However, the KWWA became concerned that the interests of
women were not receiving due attention within the male-dominated
unions and changed its strategy to one of directly recruiting and organising
women workers. It restructured itself into a mass-based organisation and
also embarked on a series of educational and capacity building
programmes. It also broadened its focus beyond the traditional
manufacturing industries to non-manufacturing sectors and informal
workers. This culminated in the formation of the Korean Women’s Trade
Union in 1999 and the Working Women’s Academy in 2004.

These organisations saw the need for an alternative model of

organising the unemployed and non-standard (‘irregular’) workers. A
committee of irregular workers would be formed in every workplace and
each committee member tasked with introducing irregular workers to the
union.195 KWTU committee members also raised the problems of
discrimination against irregular workers, especially ‘hired workers’ who
are managed by companies but classified as self-employed. The KWWA

193 A Devenish & C Skinner Organising workers in the informal economy: The experience of the
Self Employed Women’s Union, 1994-2004 (2004) 15.
194 Most of the information that follows is taken from Yong Ju Son ‘20 years of Korean
Women Workers Movement: Evaluation and future tasks’ 20th Anniversary of Korean
Women Workers Association 30 October 2007 http://library.fes.de/pdf-files/bueros/
seoul/05140.pdf (accessed 26 April 2013). See also the website of the Korean Women
Workers Association http://kwwa.tistory.com/ (accessed 21 June 2013) and J Jihye
Chun Organizing at the margins: The symbolic politics of labor in South Korea and the United
States (2009) 79-82, 93-95.
195 Interview with Maria Rhie Chol Soon, chairperson of the KWWAU, and Park
Namhee, president of the KWTU, Seoul, September 2009. Korean Women Workers
Association United (KWWAU) is the national umbrella of the seven regional
organisations of the KWWA.
306 Chapter 7

also focused on organising the unemployed, house managers (domestic

workers) and informal women workers into cooperatives while the
Academy facilitated empowerment, including training and political
education.196 More is said below about cooperatives as an organisational
model. The model embodied by the KWWA and its allied organisations,
however, appears to address the situation of marginalised women workers
in formal sectors rather than domestic workers employed in private
households. As such it may be more appropriate to the organisation of
domestic workers employed by agencies or workers doing similar work in
sectors such as hospitality or cleaning.

6.4 Co-operatives

Organisation of domestic workers has also taken place by means of co-

operatives. One example is the UNITY Housecleaners’ Cooperative in
Long Island, New York. Consisting of workers from ethnic minorities and
affiliated to the National Domestic Workers Alliance as well as Domestic
Workers United,197 UNITY operates as follows:198

To become a member, workers must complete a four-week course covering

the essential components of running a successful cooperative and a training
class on housecleaning skills. Ten percent of the money earned by each
member is contributed back to the cooperative to help cover operating
expenses and build a self-sustainable organization.

In 2010, members were earning between $15 and $16 per hour for work
gained through the cooperative.199 Members also organise to improve
working conditions for all domestic workers. The cooperative took part in
the campaign that resulted in the enactment of the Domestic Worker Bill
of Rights in 2006.200

A second example is the National House Manager’s Cooperative

associated with the KWWA in Korea,201 which runs a job placement
service and offers training courses for its members. It is run on a collective
decision-making basis and runs job placement and skills and confidence-
building programmes. It has also formed clubs to organise activities by
members and publishes a community newsletter.202

196 Interview with Maria Rhie Chol Soon (n 195 above).

197 Discussed in part 6.2.3 of this chapter (above).
198 Workplace Project ‘Women’s leadership and gender equality’ http://
www.workplaceprojectny.org/womens-leadership-and-gender-equality/. UNITY was
launched in 1998 by the Workplace Project, described as ‘a membership-based
organization that unites immigrant workers and their families for better working and
living conditions’, concentrating on empowerment in the form of ‘education,
leadership training, membership building, and organizing for change in the labor
context’: http://www.workplaceprojectny.org/history/ (both accessed 22 June 2013).
199 Visser (n 82 above) 19. The information was published in 2010.
200 Bonner (n 15 above). The campaign is referred to in part 6.2.3 of this chapter (above).
201 Discussed in part 6.3.2 of this chapter (above).
 Organising for empowerment 307

Bonner states that the primary strategy of co-operative organisations is

‘an economic development strategy’ but emphasises the ‘organising, social
and political agenda’ associated with their democratic structure based
(unlike trade unions) on self-governance. 203 She goes on to make the
following observation regarding the job placement function performed by
both cooperatives discussed above:204

Domestic workers’ cooperatives act as placement services with a difference,

having democratic structures and a political and social purpose. They could
provide an alternative to the burgeoning and exploitative placement services
for domestic workers. As the main objective of domestic workers’
cooperatives is to provide jobs for domestic workers they may be met with
suspicion from traditional trade unions. They may be perceived as being a
front for labour brokers or undercutting or undermining labour standards.
There is a real basis to this suspicion as cooperatives in sectors such as waste
management, have been used as a front for businesses to avoid labour
standards, or to acquire government financial support in a number of
countries.

This observation seems highly relevant in the South African context.

Domestic employment agencies perform a mediating role in the extremely
informal and fragmented domestic employment market, relieving workers
of the daunting task of seeking out a willing employer and the employer of
the task of verifying an unknown job-seeker’s credentials. A similar
function could be performed by a workers’ cooperative without the need
for market-related fees, thus reducing the cost to employers and allowing
the surplus to be invested in the cooperative. As the above examples show,
workers’ cooperatives could be linked to trade unions or other
organisations of domestic workers and, through training programmes,
contribute to the empowerment of workers.

7 ‘Social unionism’: A model for domestic worker

organisation in South Africa?

Two main propositions have been advanced thus far: on the one hand, the
inappropriateness of the model of industrial trade unionism in the
domestic sector and, on the other hand, the emergence of multiple forms
of organisation to address the wide range of work-related and social
disadvantages experienced by domestic workers. It has also been argued
that trade unions and other forms of organisation are not mutually
exclusive. In South Africa, it has been suggested, the strong tradition of
trade unionism indicates that trade union organisation in an appropriate
form must play a central part in any strategy for the empowerment of

202 Bonner (n 15 above) 6-7.

203 Bonner (n 15 above) 7.
204 Bonner (n 15 above) 8.
308 Chapter 7

domestic workers and the realisation of their basic rights. It is also assumed
that trade union organisation of this nature does not preclude
supplementary forms of organisation for addressing needs which the union
is less equipped to do. In this part of the chapter ‘social unionism’ will be
considered as a possible model for such organisation and a framework for
encapsulating the conclusions drawn thus far.

‘Social unionism’ is a broad concept to which it will not be attempted

to ascribe a specific definition;205 its open-ended nature corresponds to the
equally open-ended range of challenges that non-standard workers are
faced with.206 By way of characterisation it has been contrasted with
‘business unionism (emphasis on representation of interests of members,
mainly through collective bargaining)’ as well as ‘revolutionary unionism
(emphasis on representing the working class through militant anti-
capitalist opposition)’.207 In essence it refers to engagement by trade
unions with issues affecting workers outside the (formal) workplace or,
more broadly, to the combination of workplace issues with broader social
issues, not necessarily by trade unions alone but also by unions in coalition
with other organisations or by worker organisations in forms other than
the industrial trade union model. This ‘triangular’ categorisation of trade
unionism, however, should not be seen as implying a rigid division
between different organisational models. Rather, as Hyman observes, it is
a question of emphasis:

Pure business unionism has rarely, if ever, existed; even if primary attention is
devoted to the labour market, unions cannot altogether neglect the broader
social and political context of market relations … Unions as vehicles of social
integration [specifically, ‘social movement’ unions] sustain a rationale for
their existence as autonomous institutions only to the extent that their
identities and actions reflect the fact that their members, as subordinate
employees, have distinctive economic interests which can clash with those of
other sections of society. Those unions which embrace an ideology of class
opposition must nevertheless … reach at least a tacit accommodation with the
existing social order; and must also reflect the fact that their members

205 This is apparent from a dictionary interpretation: ‘Social Unionism is a concept in

which unions look beyond immediate objectives and try to reform social conditions of
the workers. Unionism may also be considered as a means of appealing to needs of
members which are not necessarily economic. In social unionism programs with
regard to education, health, welfare, artistic, recreation, and citizenship are designed
to attempt to satisfy needs of members' whole personalities’: US Legal Definitions
http://definitions.uslegal.com/s/social-unionism/ (accessed 22 June 2013).
206 In general, see S Ross ‘Varieties of social unionism: Towards a framework for
comparison’ (2007) 11 Just labour: A Canadian journal of work and society 16. The idea of
unionism concerned with broader social issues (as opposed to political campaigns) is
not new; a century ago, eg, Hoxie spoke of a strand of unionism called 'uplift
unionism' focusing on better unemployment, accident, illness and pension benefits, in
contrast to ‘business unionism’: RF Hoxie ‘Trade unionism in the United States:
General character and types’ (1914) 22 Journal of Political Economy.
207 R Hyman Understanding European trade unionism: Between market, class and society (2001)
1-4, as cited in G Kester Trade unions and workplace democracy in Africa (2007) 296.
‘Almost universally,’ Hyman observes, ‘unions emerged as social movements
challenging key principles of the prevailing social and economic order’: 60.
 Organising for empowerment 309

normally expect their short-term economic interests to be adequately

represented.208

‘Social movement’ unionism in this broad sense is deeply embedded in the

history of the South African labour movement. Under African conditions,
characterised by large-scale interconnectedness between formal and
informal economic activity, the ‘social’ aspect of trade unionism has taken
on different forms than in Europe. Explained as ‘a form of representation
beyond the narrower interests of only the trade union members in the
formal sector’, unions could not ignore the needs of ‘those working and
living outside the formal employment contract sector, an estimated 90 to
95 per cent of the population, [who] have no form of representation of their
interests’.209 Although the formal part of South Africa’s economy is
relatively large and industrial trade unions are relatively highly developed,
it is submitted that the model of social trade unionism offers a basis for
conceptualising the way that organisation could evolve in a largely
informal sector such as the domestic sector.

7.1 The Industrial and Commercial Union (ICU)

The rise and fall of the ICU has already been noted.210 In essence, the ICU
was a social movement that mobilised workers around political demands
and performed few, if any, of the functions of a trade union.211 It is
arguable that (in Hyman’s terms) its failure to adequately represent its
members’ ‘short-term economic interests’, in addition to its erratic
leadership, was a major cause of its demise. Also in the domestic
employment sector it is critical to bear in mind that an organisation seeking
to organise domestic workers must respond effectively to their work-
related interests, over and above any social issues it may address, or it will
lose its relevance as an occupation-specific organisation. Mobilisation on
social issues, in other words, can and will take place regardless of trade
unions but, in the absence of a clear nexus with the workplace, it will
amount to political mobilisation of people in general rather than appealing
to workers as workers.

208 Hyman (n 207 above) 4. Elsewhere Hyman presents a fourfold categorisation of the
issues that unions address: terms and conditions of employment; workers’ rights;
labour market regulation and ‘other facets of social life such as the environment,
consumer protection, and the local community’: see R Hyman ‘The future of unions’
(2002) 1 Just Labour 7 11 http://www.yorku.ca/julabour/volume1/jl_hyman.pdf
(accessed 22 June 2013). Again, it is submitted, ‘social unionism’ can be defined with
reference to the degree of concentration on the last-named category.
209 Kester (n 207 above) 18-19.
210 See part 5.5.1 of this chapter (above).
211 For classic accounts of the rise and fall of the ICU, see E Roux Time longer than rope:
The black man’s struggle for freedom in South Africa 2nd ed (1964); HJ & RE Simons Class
and colour in South Africa 1850-1950 (1969) Chapter 16; also http://www.anc.org.za/
show.php?id=46 (accessed 22 June 2013).
310 Chapter 7

7.2 The South African Allied Workers’ Union (SAAWU)

A more recent illustration of social movement unionism is provided by the

South African Allied Workers’ Union (SAAWU) which, unlike the ICU,
combined a militant political stance with shop-floor activism that gained it
a number of recognition agreements with employers in the Eastern
Cape.212 On the political front SAAWU demanded universal franchise,
the abolition of pass laws and the migrant labour system; on the industrial
front it refused to register in terms of the Labour Relations Act213 because
it rejected the legislation as being oppressive and discriminatory. A union
representative described SAAWU as ‘a trade union dealing with workers
who are part and parcel of the community. Transport and rents to be paid,
are also worker issues. The problems of the workplace go outside the
workplace.’214

There can be no doubt that SAAWU’s approach struck a chord

amongst workers in the workplaces that it organised. For a number of
reasons, however, it did not succeed in developing its base significantly
beyond its home ground while, at the same time, it suffered severe
repression at the hands of the South African state and the Ciskei Bantustan
regime. Uncompromising hostility by employers saw a number of strikes
defeated and in 1984 its leadership split. While SAAWU experienced
setback after setback, COSATU was formed in 1985 on the basis of an
explicit anti-apartheid programme and support for the banned African
National Congress. In effect it was occupying the ground that SAAWU
had occupied, but with far greater resources and political influence at its
disposal. SAAWU was present at the launch of COSATU and thereafter
its membership was absorbed by COSATU-affiliated unions.215

7.3 COSATU

COSATU is not the only trade union federation in South Africa.216

Domestic worker organisation since the 1980s, however, has taken place
mainly under the umbrella of COSATU217 and for this reason it is useful
for present purposes to view the question of social movement unionism
within the COSATU context. More specifically, the history of COSATU
and its affiliated unions of militant involvement in socio-political issues

212 See J Maree ‘SAAWU in East London, 1979-1981’ (1982) 7 South African Labour
Bulletin 34; D MacShane et al Power! Black workers, their unions and the struggle for freedom
in South Africa (1984) 43-46.
213 Labour Relations Act 28 of 1956, as amended in 1979 to allow the registration of trade
unions of African workers.
214 Quoted in MacShane et al (n 212 above) 43.
215 S Bendix Industrial Relations in South Africa 4th ed (2001) 189.
216 Two other federations are the Federation of Unions of South Africa (FEDUSA) http:/
/www.fedusa.org.za/ and the National Council of Trade Unions (NACTU) http://
www.nactu.org.za/ (both accessed 23 June 2013).
217 While SADSAWU is not formally affiliated to COSATU, it is supported by COSATU.
 Organising for empowerment 311

during the anti-apartheid struggle in the late 1980s and the transition to
democracy in the early 1990s has been seen as an illustration of social
movement unionism.218 It may be questioned whether this can still be said
with the same degree of certainty. Without examining its post-1994 history
in detail,219 it is arguable that COSATU has evolved further from the
‘social movement’ side of Hyman’s paradigm220 towards the ‘business’
side. It is true that mobilisation on social issues has continued, but to a
lesser extent than before while, much more than in the past, the focus has
shifted to influencing government rather than participation in community-
based campaigns. This has been emphasised dramatically by the upheavals
in the platinum mining sector during 2012 when significant numbers of
workers repudiated COSATU’s largest affiliate, the National Union of
Mineworkers, and took spontaneous industrial action or defected to join
unions that were perceived as being more responsive to their needs.221
COSATU’s limited focus on the organisation of marginalised workers may
thus be seen as a logical corollary of its concern with power at a national
level.

The argument for an alternative approach to the organisation of

workers outside the mainstream, based on the tradition of social
movement unionism, needs to be seen against this background. It should,
however, be qualified in at least two ways. First, while such an approach
would indeed mark a departure from COSATU’s dominant practice, it
would have roots in COSATU’s traditions and resonate with many of its
stated policies. To this extent it would represent continuity as well as
change. Secondly, the resources and influence which COSATU has
developed at the level of national politics could also be seen, in Hyman’s
words, as ‘a resource for creative initiative’ rather than merely a
‘straightjacket’. Regardless of the degree of active initiative in promoting
social unionism amongst marginalised workers that may be forthcoming
from COSATU, it is suggested that nothing prevents COSATU from
supporting such initiatives and that steps in this direction can be taken
within the framework of COSATU.

7.4 The Women on Farms Project and Sikhula Sonke

The Women on Farms Project (WFP) grew out of an initiative started in

1992 by Lawyers for Human Rights222 which focused on the needs of

women who live and work on farms.223 WFP is a registered NGO and
initially functioned through Vroue Regte Groepe (Afrikaans for ‘women’s

218 Cf, K von Holdt ‘Social movement unionism: The case of South Africa’ (2002) 16
Work, Employment & Society 283; also www.geog.psu.edu/courses/geog497labor/
Readings/ vonHoldt03_SMU. doc (accessed 1 May 2010).
219 Aspects of it are discussed in part 5.5.4 of this chapter (above).
220 See Hyman and discussion (n 208 above).
221 See part 9 of Chapter 1 (above).
312 Chapter 7

rights groups’) that they had established on various farms. Through these
groups women could talk about their experiences and their problems and
how to bring about change in response to the challenges they were faced
with. Arising from this process, WFP introduced a number of programmes
spanning issues such as women’s health and reproductive rights, labour,
social security, youth and land or economic development.224

Aware of the vulnerability of donor-funded activity, however, WFP

looked towards forming a self-sustaining member-based organisation.
Extensive discussions were held with women farmworkers to investigate
ways of representing their interests. This culminated in 2004 in the
formation of Sikhula Sonke (‘we grow together’), a union for women
farmworkers led by women.225

Although registered as a trade union in terms of the LRA in order to

perform functions such as representing its members in the CCMA226 and
concluding collective agreements with employers, it sees itself as a ‘social
movement’ with the aim of empowering its constituency by fostering ‘self-
organisation and direct action at a grassroots level’.227 It is described as ‘a
member-driven trade union dealing with all the livelihood challenges of
especially farmwomen’, including ‘labour rights, domestic violence, food
insecurity and alcohol abuse’.228 The reason for its focus on women is
explained as follows:

Making up the majority of seasonal and casual workers in the sector, women
remain largely unrepresented in most unions in the absence of organising
strategies targeted specifically at the majority of temporary/seasonal
workers.  Women are therefore also almost completely absent in the
leadership of these unions.  Thus, issues that particularly affect women are
largely neglected by mainstream trade unions. For these reasons, Sikhula
Sonke adopted the [principle] of women leadership.

222 Lawyers for Human Rights (LHR) is described as ‘an independent human rights
organisation with a 30-year track record of human rights activism and public interest
litigation in South Africa’: see LHR website http://www.lhr.org.za/ (accessed 22 June
2013).
223 For an academic analysis of the origins and vision of WFP, see A Kritzinger & J
Vorster ‘Women on South African farms: Empowerment across or along race and class
divisions?’ (1998) 38 Sociologia Ruralis 331 339-341.
224 For more information, see WFP website: http://www.wfp.org.za/ (accessed 22 June
2013).
225 See WFP ‘History’ http://www.wfp.org.za/about-us/history.html (accessed 22 June
2013). Details of Sikhula Sonke’s activities and the WFP/Sikula Sonke partnership are
available in the WFP annual reports: http://www.wfp.org.za/publications/wfp-
annual-reports.html (accessed 22 June 2013).
226 In terms of CCMA rule 25, only members, office-bearers or officials of a registered
trade union may represent an employee in proceedings at the CCMA: Rules for the
Conduct of Proceedings before the CCMA, GNR 1448 of 10 October 2003.
227 Sikhula Sonke ‘About us’ http://www.ssonke.org.za/index.php?option=com_content
&view=article&id= 53&Itemid=27 (accessed 22 June 2013).
228 ‘Who is Sikhula Sonke?’ http://www.wfp.org.za/content/XID3-sikhula_sonke.html
(accessed 1 May 2010); and see SD 7 (n 35 above). The quotations that follow are also
from this source.
 Organising for empowerment 313

Importantly, Sikhula Sonke’s objective is ‘to craft an organisational model

that will not only challenge the unfair labour practices experienced by
women farm workers, but will also more broadly address the social and
economic development needs of women who live and work on farms’.229
Collective agreements with farm employers to date include provisions for
paid maternity leave, housing contracts, crèche facilities, wage increases
beyond the minimum wage rate set by the sectoral determination,230
protective clothing, the installation of mobile toilets in vineyards and
orchards, medical aid, provident funds and annual bonuses.231 Training
and capacity building by Sikhula Sonke focuses on building skills,
knowledge and consciousness amongst women through a socio-economic
rights based training approach. This is done through conducting
workshops at farm and district levels, public awareness initiatives and
through the network of farm women established under the WFP.

In the manner pioneered by SAAWU (above), these objectives address

not only the working conditions of members but a broader range of issues,
inside and outside the workplace, that are important in their lives. In the
same way, it is submitted, an organisation of domestic workers could
develop a broader basis by identifying issues that are of major concern to
domestic workers regardless of whether they fall within the scope of terms
and conditions of employment. The empowering approach to organisation
advocated by Sikhula Sonke and WFP could allow domestic workers to
have a collective voice, in a more self-organised and direct-action oriented
manner, about matters that affect their lives in the workplace and the
broader community. This could help to undo what Ally calls ‘the
positioning of the state as the articulator, representative and protector of
the collective interests of domestic workers’232 and create space for new
and innovative methods of recruitment and organisation which are
appropriate to new and different areas of activity.

7.4 The role of advice offices and community organisations

As suggested in Chapter 5, more thought could be given to how best to

utilise existing advice offices and other community organisations which
offer support to both organised and unorganised workers, as components

229 Women on Farms Annual Report 2004. See also F Anciano ‘Agents of change? The
impact of social movements in post-apartheid South Africa’ Centre for the Study of
Democracy, University of Johannesburg; Department of Political Studies, University
of the Western Cape, undated 3  http://www.ru.ac.za/media/rhodesuniversity/
content/sociology/documents/Fiona%20Anciano.doc (accessed 22 June 2013); War
on Want ‘Women farm workers in South Africa’ (undated) http://www.war
onwant.org/overseas-work/food-sovereignty/women-farm-workers-in-south-africa
(accessed 22 June 2013).
230 Ie, Sectoral Determination 13: Farm Worker Sector, South Africa (GNR 149 of 17
February 2006); see SD 7 (n 35 above).
231 Sikula Sonke (n 227 above).
232 See Ally ‘Domestic work unionisation in post-apartheid South Africa’ (n 4 above).
314 Chapter 7

of a revised strategy for organising domestic workers.233 A significant

example is provided by the Labour Community Advice, Media and
Education Centres (LAMECs) launched by Workers’ World Media
Productions (WWMP) in 2011.234 The centres are intended to offer not
only advice and case handling services but to provide physical space for
cultural, educational and community renewal for marginalised workers
such as casual workers, migrant workers, farm workers and domestic
workers. Importantly, they are located within the communities in which
the target groups reside to ensure ease of access. Advice and case-handling
services relate to all work-related issues such as unfair dismissal, UIF
claims, social grants and immigration issues.

Services of this nature, however, should not be dependent on NGOs

and the donor funding they are able to raise. A case can be made out for
state funding to ensure the provision of services necessary to give effect to
the basic rights of workers in terms of the Bill of Rights235 as well as the
requirements of Convention 189.

More detailed study is needed of the work of these and other

organisations in order to better understand the possibilities of
synchronising their activities with those of a union of domestic workers.
Community organisations, given their limited resources and the
potentially huge demand for their services, will undoubtedly seek to avoid
duplicating services to union members in areas such as case-handling and
advice, which unions could or should be providing. Specialised services in
the area of culture and recreation, on the other hand, could be subject to
agreement and an advice office could in all cases refer unorganised
workers to unions in their sectors that should be their first port of call.

7.5 Social unionism and collective bargaining in marginalised

sectors

It has been argued that a trade union must seek to represent workers’

‘short-term economic interests’,236 whatever additional functions it may

perform, if it is to enjoy credibility. It is submitted that this applies to
unions of the ‘social movement’ model as much as to any industrial trade
union. Since collective bargaining is the form that such representation has
historically taken in South Africa, the term is used here also to describe

233 A good example is the Casual Workers’ Advice Office in Germiston, Gauteng: see
Casual Workers’ Advice Office ‘Donations appeal’ http://www.labournet.net/world/
1109/CWAO_donate.pdf (accessed 25 April 2013).
234 The information below is from WWMP ‘Labour community advice, media and
education centre (LAMEC)’ www.wwmp.org.za/docs/ LAMECpamphlet.pdf
(accessed 22 April 2013). Centres are currently functioning in Wynberg, Johannesburg
and Khayelitsha, Cape Town.
235 As discussed in Chapter 2 (above).
236 See part 7.1 of this chapter (above).
 Organising for empowerment 315

engagement between workers and employers over economic interests but

also, for reasons indicated below, over other matters of mutual interest. It
has furthermore been argued that the statutory processes of collective
bargaining created by the LRA237 take little account of the conditions of
the domestic sector and that a central challenge is to arrive at a form of
collective bargaining appropriate to the sector. The term ‘collective
bargaining’ is therefore used in an open-ended sense, referring to a process
of collective engagement between domestic workers and employers that
has yet to be worked out between the parties.

Sectoral Determination 7238 represents the only collective regulation

of terms and conditions of employment applicable to the sector at present
and its manifest limitations identified in earlier chapters offer a starting
point for conceptualising a potential collective bargaining framework.
Chief amongst those limitations are (a) the lack of engagement with
workers and employers in formulating the content of SD 7 other than
through a process of public consultation in terms of sections 52 and 53 of
the BCEA,239 and (b) the fact that (given its proclamation in terms of the
BCEA) it is restricted to basic conditions of employment, thus leaving a
great many issues of concern to workers and employers dealt with in other
statutes unregulated, except by general provisions that may be
inappropriate to the domestic sector or by common law.

It is submitted that the system of collective engagement developed in

the private security sector offers a potential model for the domestic sector
and other sectors where statutory bargaining systems in terms of Chapter
III of the LRA are not (yet) feasible. In a nutshell, Sectoral Determination
6 for the Private Security Sector240 is arrived at through a combination of
collective bargaining with the consultative process provided for by the
BCEA. The Employment Conditions Commission explains the process as
follows:241

The sector has no Bargaining Council but has a forum with a constitution that
bargains collectively on conditions of employment and wages. The parties to
this forum are, however, not representative of the entire industry. Since the
promulgation of SD 6, the practice has been that the parties first negotiate in a

237 In particular, the provisions for the creation of bargaining councils (part C of Chapter
III of the LRA) or statutory councils (part E of Chapter III).
238 Discussed in part 5.1.2 of Chapter 3 (above); and see n 10 above.
239 See part 5.2.2 of Chapter 3 (above). Chapter 8 of the BCEA, which provides for
sectoral determinations, places no obligation on the Department of Labour to ensure
that the views of workers or employers in the sector are canvassed or considered.
240 See Department of Labour ‘Sectoral Determination 6: Private security sector’ http://
www.labour.gov.za/legislation/sectoral-determinations/sectoral-determination-6-priv
ate-security-sector (accessed 23 June 2013).
241 Report of the Employment Conditions Commission (ECC) on the investigation into
the review of the minimum wages and conditions of employment in the Private
Security Sector (2012) 5-6 (hereafter ‘ECC Report’)  https://www.labour.
gov.zadownloads/documents/useful-documents/basic-conditions-of-employment/ecc
privatesecurityreport2012.doc (accessed 23 June 2013).
316 Chapter 7

formally constituted negotiating forum. The agreement reached in the

bargaining forum then forms the basis of discussion in the ECC process
where it is tested against the criteria as set out in the Basic Conditions of
Employment Act (BCEA) … The agreement therefore serves as an input
document in the investigation process. As in other sectors, the ECC is always
eager to consider as much as possible agreements reached through voluntary
collective bargaining to promote collective bargaining.

Even though formally enjoying the status of an ‘input document’ only,

thus, the ECC notes that the collective agreement had already been signed
when the public hearings commenced and that it ‘formed the basis of
discussions’.242 On most issues the ECC adopted the terms of the
agreement for inclusion in the sectoral determination, in some cases with
minor qualifications in the light of submissions made at the public
hearings.243

Implementing the constitutional right to engage in collective

bargaining and ‘effective recognition of the right to collective
bargaining’244 could be promoted by establishing a comparable
negotiating forum in the domestic sector. This, however, is dependent on
the development of sufficiently representative245 organisations of
employers as well as sufficiently representative trade unions. Given that
trade union organisation is at an emergent stage and employer
organisation is non-existent, it would be premature to consider the nature
of possible bargaining arrangements that may be agreed upon in the future.
It is suggested that the purposes, types and methods of organisation
considered in this chapter, and the model of social unionism in particular,
offer starting points in considering the questions bound up with this
challenge and with the broader objectives of the empowerment of domestic
workers.

8 Some provisional conclusions

This chapter has been concerned not with organisation in general, or even
with trade union organisation as such, but with organisation as a means
towards the empowerment of domestic workers. A great many themes and
arguments relating to the complex questions bound up with this project

242 ECC Report (n 241 above) 9.

243 A total of 250 individual employers and 588 employees attended the numerous public
hearings held in all nine provinces: ECC Report (n 241 above) 9-10.
244 In terms of sec 23(5) of the Constitution and art 3(3), as discussed in part 5.2.2 of
Chapter 3 (above).
245 The term is used in a non-technical sense, in the context of the possible development of
bargaining arrangements in the domestic sector that may not correspond to its current
definitions in terms of the LRA. The point is only that a certain degree of
representivity should be reached, which remains to be clarified, at which organisations
in the domestic sector may be deemed to acquire the legitimacy which is needed to
enter into agreements that could credibly influence standard-setting for the sector as a
whole.
 Organising for empowerment 317

have emerged from this and previous chapters, and many lessons may be
learned from the practice of organisations discussed above. In conclusion
it will be attempted to draw these propositions and lessons together as
simply as possible in the form of a series of propositions for consideration
in the context of developing such organisation. For obvious reasons, these
propositions are tentative; practical conclusions can only be reached by the
workers involved in establishing such organisation.

8.1 A transformative programme

It has been argued that the fundamental rights of domestic workers have
been implemented only to a limited and inadequate extent within the
existing legal framework and that a transformative understanding of the
Bill of Rights is a necessary basis for overcoming these barriers to
empowerment. The implication is that the constitution, policies, strategy
and tactics of an organisation of domestic workers should be geared
towards the same transformative objectives.

8.2 Multi-level organisation

It has been noted that the domestic sector is a complex sector, including a
minority of workers collectively employed by agencies in formal
employment relationships246 to a majority employed either formally or
informally by individual employers – often on a part-time basis by more
than one employer.247 The implication is that the methods of industrial
trade unionism and traditional collective bargaining, while inappropriate
to the situation of individually-employed workers, may be more
appropriate in establishing bargaining relationships with employment
agencies. The organisation of different categories of domestic workers may
therefore take different forms, whether within a single framework or
separately.

As noted in the Introduction, however, the focus of the study has been
on the position of workers employed by individual employers, since it is
here that the most fundamental challenges to prevailing concepts of labour
regulation and organisation present themselves and unique responses are
called for. The observations below are therefore addressed to the
organisation of this category of workers although the framework of
reference – for example, in establishing general norms – must be to the
sector as a whole.

246 Such employment is both formal and ‘non-standard’ in that the workers perform
services for their employers’ clients rather than their employers; as such it is subject to
the new secs 198 and 198A of the LRA.
247 We have also noted the existence of workers doing identical work in other sectors such
as contract cleaning or the hospitality industry, who are covered by different sectoral
determinations or collective agreements which may serve as points of reference.
318 Chapter 7

8.3 Purposes of organisation

Organisation serving the purpose of empowerment will be called upon to

perform different functions, including:

• defending the rights of domestic workers by appropriate methods, ranging

from negotiating and mediating to taking legal action or exerting pressure
through campaigning or other means;
• representing the interests of domestic forums in bargaining or other
forums, implying the need for processes of mandating workers’
representatives;
• participating in regulatory bodies where, in a paradigm of responsive
regulation, general rights and duties – for example, relating to
organisational rights – are adapted to the conditions of the sector and
specific regulations – for example, relating to wage differentials – are
formulated; and
• monitoring compliance with laws and regulations, creating
communication channels to make this possible and triggering enforcement
processes where necessary.

8.4 Capacity-building

Empowerment as an objective for domestic workers as a class, in the sense

discussed above, implies the capacity of organised domestic workers and
their representatives to perform the above-mentioned functions effectively.
Training and capacity-building has been an abiding theme in the brief
overview of organisations of domestic and other marginalised workers
both nationally and internationally. It is suggested that this experience
needs to be carefully analysed as one means of ensuring that education and
training produce the intended outcomes.

8.5 Social movement unionism

The history of trade unionism amongst domestic workers is a powerful

basis to build on. However, given the practical limitations of industrial
trade unionism in less formal sectors, its lack of impact in the domestic
sector and the range of issues confronting domestic workers both inside
and outside the employment relationship, it has been argued that a broader
concept of trade unionism referred to as ‘social unionism’ offers a more
appropriate framework for developing organisation geared to domestic
workers’ needs. As suggested below, this may involve the establishment of
networks and alliances as a means of addressing the wide range of issues
facing domestic workers in their workplaces and communities, ranging
from skills training to job placement, which a single organisation may have
difficulty in coping with.
 Organising for empowerment 319

8.6 Relationship with the labour movement

It has been strongly argued that the historical link between domestic
workers’ organisation and the trade union movement is an asset that needs
to be preserved. This suggests that organisation of domestic workers
should ideally take place within the framework of the existing movement
of organised labour. This would enable domestic workers’ organisation to
benefit from the experience248 and resources, such as training facilities, of
established unions while contributing its own experience of organising
under conditions of informality to unions faced with the challenge of
informalisation within formal sectors.

8.7 The ethnic factor

A common denominator emerging from the overview of organisations of

domestic or marginalised workers internationally has been the potency of
ethnicity or national background as a cohesive factor. While the labour
movement has, understandably, been wary of ethnicity as a potential
source of division, globalisation and labour migration have created a
situation where migrant workers may have no practical option but to
organise on this basis. In South Africa the presence of migrant workers,
and migrant domestic workers, from many different parts of Africa
suggests that organisation along ethnic or national lines should be seen as
a potentially important building block towards comprehensive
organisation of domestic workers.

8.8 Multi-faceted organisation

In addition to the contrast between domestic workers who are collectively

employed by agencies and those employed by individual householders, it
is clear from what has been said that a wide variety of functions need to be
performed in addressing the needs of domestic workers. To the extent that
it may be beyond the capacity of a single organisation to perform these
functions effectively, different forms of alliances or networks may need to
be considered with a view to ensuring that this is done in an integrated
manner.

248 Bearing in mind that the experience of industrial unions may or may not be relevant to
the conditions of the domestic sector.
 8
CHAPTER
CONSTRUCTING AN
INTEGRATED MODEL FOR THE
REGULATION AND
ENFORCEMENT OF DOMESTIC
WORKERS’ RIGHTS

Darcy du Toit

1 Overview

The purpose of this chapter is to integrate key findings of the study, as

captured in previous chapters, into a narrative addressing the central
challenge identified in Chapter 1: conceptualising an ‘appropriate’
regulatory framework1 for the domestic sector, capable of giving the fullest
possible effect to domestic workers’ rights in terms of the Constitution and
the ‘decent work’ agenda of the International Labour Organization
(ILO).2

This has not been a purely legal study in the sense of analysing the
existing regulatory framework in its own terms, or a purely socio-legal
study in the sense of examining the interaction between the regulatory
framework and its social context, though it has tried to do both. Over and
above this it has explored the supposition that ‘the gap between affirmation
of domestic work as work (within the labour law context) and social justice
for domestic workers can be bridged through the decent work paradigm’,
understood as a project of ‘transformative constitutionalism’ in the sense
of ‘non-reformist reform’.3 It has therefore been concerned with the social
objectives embedded in the law, the disparities between those objectives
and the impact of the existing law and – most importantly – possible
developments in the regulatory framework, including its institutional

1 The term is used throughout as referring to the applicable body of substantive law
together with the institutional infrastructure enabling its formulation and its
enforcement.
2 As manifested specifically in ILO Convention 189 Concerning Decent Work for
Domestic Workers (2011) read with its accompanying Recommendation 201
(discussed in Chapters 2-4 above). The Convention and Recommendation will be used
as a point of reference throughout this chapter, representing the most widespread
consensus on the subject that has thus far been reached among legislatures
internationally.
3 These concepts are discussed in parts 4 to 6 of Chapter 2 (above).

321
322 Chapter 8

infrastructure, that might overcome those disparities. To this end a ‘three-

dimensional model’4 arising from the principles of transformative
constitutionalism, decent work and responsive regulation has been used to
examine the formulation of the labour and social security rights of
domestic workers, the implementation of those rights and the regulation of
migrant domestic labour in some detail.

In the process a number of over-arching themes have emerged,

reflecting not only on the nature of the inquiry itself but also on the
conclusions to be drawn from it. These themes are outlined below to set the
scene for the main focus of the discussion: conceptualising possible
parameters of a workable regulatory framework for the domestic sector.

2 Themes framing the concept of effective

regulation in the domestic sector

2.1 The intimate nature of individual domestic work

The study set out from the same point of departure that many other studies,
policy documents and legal instruments have taken: the ‘special conditions
under which domestic work is carried out’,5 referring in particular to the
isolation of the individual domestic worker in the privacy of the employer’s
home, the ‘intimate’ nature of the relationship between the individual
worker and employer, the overwhelmingly female composition of the
workforce and the fact that many are employed in foreign countries
without legal documentation. This combination of factors explains the apt
characterisation of domestic work as ‘work like any other, and … work like
no other’6 as well as the particular vulnerability of domestic workers to
exploitation, discrimination and abuse. It also explains the extraordinary
difficulty of protecting their rights by conventional legal means and the
need for rules and institutions capable of overcoming the marginalisation
of this important sector of the working population.

But, as Ally has pointed out, this one-to-one relationship between

worker and employer (referred to below as the ‘typical model’) also has
another important aspect: the opportunity it creates for the worker to exert
direct influence over the regulation of his or her working conditions.7
While this interaction is rooted in inequality and may depend on

4 Discussed in part 4 of Chapter 3 (above).

5 Convention 189, Preamble.
6 International Labour Conference Report IV(1): Decent work for domestic workers ILO,
Geneva (2010) para 47, with reference to A Blackett ‘Promoting domestic workers’
human dignity through specific regulation’ in A Favre-Chamoux (ed) Domestic work as
a factor of European identity: Understanding the globalization of domestic work, 16th–21st
centuries (2005).
7 S Ally From Servants to workers: South African domestic workers and the democratic state
(2010) 95-103.
Constructing an integrated model for the regulation and enforcement of domestic workers’ rights 323

acknowledging the employer’s dominant position, it nevertheless opens

possibilities of subverting that dominance through strategies of negotiating
change. Castell-Branco gives the following example:8

With experience, Albertina herself has been able to negotiate better working
conditions by cultivating a good relationship with her employer and
communicating one-on-one.
‘Pick a day when you see that your employer is calm and explain your
problem,’ she recommends. ‘He’s likely to apologise … but if he tries to justify
his actions, to elevate himself, you need to bow down to him because he can’t
accept that you’re equals. You need to be patient.’

Scope for negotiation in highly unequal relationships, however, is

inherently fragile and vulnerable to disruption. An ironic consequence, as
Ally goes on to note, is that workers may be reluctant to place their
precarious bargaining position at risk by invoking the uncertain protection
of laws enacted for their benefit.9 Indeed, Ally’s research suggests that
Sectoral Determination 7,10 read with the Basic Conditions of
Employment Act,11 may be missing its purpose to a greater or lesser
extent. Laws such as these are intended to guarantee minimum working
conditions and prevent forms of exploitation, such as excessive working
hours, which are most commonly experienced. Triggering such protection,
however, means lodging a complaint with the Department of Labour,
leading to intervention by a labour inspector and, if the complaint is
upheld, setting in motion a formal enforcement procedure.12 Similarly,
any complaint about the violation of a worker’s rights in terms of the
Labour Relations Act13 or Employment Equity Act14 must take the form
of referral to the Commission for Conciliation, Mediation and Arbitration
(CCMA), followed by quasi-legal proceedings by the worker against the
employer. It will be evident that any relationship cultivated by the worker
with the employer would be unlikely to survive enforcement or legal
proceedings of this nature, that workers may be hesitant to risk it and that
the purposes of these laws may easily be frustrated by their incompatibility
with the realities of the domestic employment relationship.

This suggests that legal regulation of the domestic sector should take
account of the ambiguous nature of the relationship between the individual
worker and employer. Labour law in general assumes an adversarial

8 R Castel-Branco ‘Organizing the patience industry: Profile of a domestic worker in

Maputo, Mozambique’ WIEGO Workers’ Lives No 3 (October 2012) http://
wiego.org/sites/wiego.org/files/publications/files/Castel-Branco_WIEGOWL3.pdf
(accessed 6 July 2013).
9 Discussed in Ally (n 7 above) Chapter 4.
10 Sectoral Determination 7: Domestic Worker Sector, South Africa (GNR 1068 of 15
August 2002) (SD 7).
11 Act 75 of 1997 (BCEA).
12 As laid down in Chapter 10 of the BCEA, discussed in part 2.3.1 of Chapter 5 (above).
13 Act 66 of 1995 (LRA).
14 Act 55 of 1998 (EEA).
324 Chapter 8

relationship and, while creating a floor of rights, sets out to reinforce the
bargaining position of workers on a collective basis. This presupposes
workplaces where workers have sufficient strength in numbers to deal with
employers collectively; for example, through the election of shop stewards
with statutory rights to represent them.15 Projecting a similar adversarial
relationship into the domestic workplace, however, may have the
unintended consequence of locking the worker into a trial of strength with
the employer which, given the limited reach of existing enforcement
procedures, may do little more than placing the worker in an untenable
position. An appropriate regulatory framework, it is suggested, must take
into account the isolation of the worker as well as the importance of
nurturing an employment relationship based on mutual respect.

2.2 Commonalities between domestic work and other forms of

work

However, the uniqueness of the typical model of domestic work is relative

rather than absolute. Conditions of isolation and extreme inequality are
also experienced by greater or lesser numbers of workers in other sectors,
particularly in small workplaces, sometimes also located in private homes,
operating beyond the effective reach of regulatory institutions. This aspect
of the so-called ‘SMME16 sector’ has been illustrated in a wealth of
literature painting a diverse picture of cross-sectoral economic activity,
ranging from relative formality to extreme informality.17 In this sense,
therefore, domestic work is not entirely exceptional: much that can be said
of regulatory challenges in the domestic sector may also be true of parts of
the SMME sector, and vice versa. The development of a regulatory
framework in the domestic sector may thus be seen as part of a larger
exercise aimed at extending labour regulation to currently unregulated or
poorly regulated parts of the economy as a whole. If this is so, designing
regulatory institutions appropriate to the conditions of the domestic sector
may help to set precedents for promoting regulation of the SMME sector
more generally and thus take on a broader significance, deserving greater
emphasis at the policy level of labour market regulation.

But, on closer examination, the picture gets more complex: a

significant number of domestic workers fall outside the typical model,
being employed not by individual householders but by temporary

15 See LRA, secs 14 & 16.

16 Ie, ‘small, medium and micro-enterprise’ sector.
17 For a general overview of small-scale and informal economic activity in South Africa
see R Devey et al ‘Second best? Trends and linkages in the informal economy in South
Africa’ Development Policy Research Unit (2006) http://www.dpru.uct.ac.za/sites/
default/ files/sites/default/files/DPRU%20WP06-102.pdf (accessed 7 May 2013). On
the concept of ‘household production’, see part 4 of Chapter 1 (above).
Constructing an integrated model for the regulation and enforcement of domestic workers’ rights 325

employment agencies (or ‘labour brokers’).18 ‘Agencies’ range from

criminal organisations engaged in human trafficking19 to formal
enterprises operating lawfully as ‘temporary employment services’ in terms
of the LRA and the BCEA. Regulating triangular employment
relationships of this nature, which have proliferated in every sector,
presents difficulties of its own and has given rise to considerable
controversy in South Africa.20 Though these questions fall beyond the
scope of the present study, the point is that the challenges of regulating
agency work are different from those relating to individual employment.
While certain conditions arising from the nature of domestic work (for
example, occupational hazards) are common to the sector as a whole,
other conditions vary significantly. The present study, for reasons noted in
Chapter 1 (above), has focussed on the particular challenges presented by
the individual work relationship.

Further blurring the uniqueness of domestic work is the fact that

similar, or identical, work is also done in other sectors; for example,
cleaning and cooking in hotels and guest houses.21 Again, the main
difference is that it takes place in formal workplaces and may be covered
by collective agreements or sectoral determinations laying down divergent
conditions of employment. In practice, however, such work is perceived
differently than similar work performed in private homes, being regarded
as formal employment and paid more highly.22 In addition, such work
may offer career opportunities, in some cases linked to tertiary
qualifications; for example, chefs in the hospitality industry, caring staff in
nursing homes or horticulturalists as opposed to cooks, carers or gardeners
working in private households.

The ‘undervalued’ nature of individual domestic work, thus, does not

necessarily arise from the nature of the work itself but has more to do with
the fact that it is performed for a private householder rather than a formal

18 Ie, making workers’ services available to third parties: see part 4.3.2 of Chapter 5
(above). In terms of the categorisation of economic sectors by Statistics South Africa,
such agencies appear to be located in the ‘Financial and other business services’ sector:
see J Theron ‘The shift to services and triangular employment: Implications for labour
market reform’ (2008) 29 Industrial Law Journal 1 11.
19 See part 3.3.1 of Chapter 5 (above).
20 A legislative response is contained in the new secs 198 and 198A of the LRA as well as
the Employment Services Bill of 2012, which are before Parliament at the time of
writing.
21 For more detailed discussion of this aspect see Y Flückiger & GF Luzzi ‘Domestic
work in Switzerland: Calculation of the prevailing wages in the domestic services
sector in Switzerland in consideration of the establishment of a standard contract’
Observatoire Universitaire de l’Emploi, Université de Genève (2009) http://
www.seco.admin.ch/dokumentation/publikation/00008/02339/index.html?lang=en
(accessed 12 May 2013).
22 Eg, Sectoral Determination 14: Hospitality Sector, South Africa (GNR 437 of 15 May
2007) currently sets a minimum wage of R2 240.60 per month for employers with 10 or
fewer employees and R2 495.80 for employers with more than 10 employees: item 2.
The current minimum wage for domestic workers, by contrast, is R1 746.00 in
metropolitan areas and R1 491.86 in non-metropolitan areas: SD 7, item 3.
326 Chapter 8

employer. This is partly a reflection of the process by which the wages in

question are determined. Typically, one-to-one negotiation between the
(economically powerful) householder and the (economically weak)
domestic worker is likely to result in a low wage which, as discussed below,
carries over into a low legal minimum wage. This does not apply in
commercial and industrial sectors where higher levels of public awareness,
a perceived ability of employers to afford higher wages and a greater trade
union presence result in more effective application of legal requirements as
well as different levels of remuneration, including benefits such as training.

One conclusion to be drawn, thus, is domestic work as an economic

category cannot simply be equated with the services performed by the
individual worker for the individual householder. By the same token, the
intrinsic value of services falling within this category cannot be equated
with the wages that individual householders are deemed able to afford.
This leads into a third over-arching theme: transcending the
undervaluation of domestic work by seeking to understand its value in a
broader socio-economic context.

2.3 The value of domestic work

Part of what has been said above is captured in the finding that ‘household
production’ has economic value.23 Viewed in this light, domestic work
contributes to the value of the ‘labour time’ which the ‘household
economy’ provides to the ‘market economy’. It has also been argued that,
to an extent that remains to be quantified, domestic work is performed in
the context of ‘value chains’. In such cases, it was suggested:

domestic work may be seen as ‘liberating’ a cohort of domestic employers

from domestic duties, thereby enabling them to pursue economic activities
outside the household. To that extent domestic workers participate in the
production of … the ‘labour time’ sold by the household and, thus, contribute
to the value created as an output of that labour.24

Part of the value of domestic work, thus, is located in the value which
domestic employers are enabled to create by means of ‘economic activities
outside the household’.

A further source of value is located in the caring function often

provided by domestic workers for children or elderly members of
households. Arguably, the value thus generated must be defined in terms
of public law rather than market forces in the private sector. In Chapter 4
(above) the point was made as follows:25

23 See part 4 of Chapter 1 (above).

24 Part 4 at 9, Chapter 1 (above).
25 See the discussion in part 4 of Chapter 4 above.
Constructing an integrated model for the regulation and enforcement of domestic workers’ rights 327

According to the constitutional and legal framework in South Africa, the state
must provide care where the family cannot, but in many cases it is domestic
workers in the families’ employment who do so. Therefore, domestic workers
in many cases may be fulfilling a task that is constitutionally incumbent on
the state.

This raises questions, which have not been explored in this study, as to the
relationship between the responsibilities of the state in this regard and the
common law duty of mutual support between children and their parents or
grandparents.26 To the extent that paid domestic carers perform a function
that may otherwise have been incumbent on the state, however, it can be
argued that it takes on the same value which it would have had if
performed by the state. Determining that value, instead, on the basis of the
unequal bargaining relationship between the individual employer and
worker appears inappropriate in the broader constitutional context.27
Rather, it raises the question (considered in Chapter 4 above) of the
responsibility of the state in supporting and possibly subsidising a function
performed on its behalf on the basis of its value as a public service.28
Training of workers performing this function, for example, is a form of
support that might reasonably be expected.

More research is needed to clarify the propositions outlined above.

However, it seems safe to conclude that domestic work in a generic sense
is multifaceted, with a social dimension in addition to its intrinsic nature –
which may vary according to the sector in which it is performed. Its value
accordingly needs to be determined with reference to a range of factors
broader than those considered by the Department of Labour when
determining minimum wages for domestic workers in terms of SD 7. It is
arguable that the Bill of Rights creates a range of considerations by which
the state is bound, starting with the worker’s right to dignity and including
its numerous responsibilities in the socio-economic sphere. Section 54(3)
of the BCEA reflects this frame of reference somewhat obliquely, requiring
the Employment Conditions Commission to ‘[advise] the Minister [of
Labour] on the publication of a sectoral determination’ and, in doing so,
to ‘consider in respect of the sector and area concerned’ a number of
factors, including:

• the ability of employers to carry on their business successfully;

• the operation of small, medium or micro-enterprises, and new enterprises;
• the cost of living;
• the alleviation of poverty;

26 To the extent that the duties of the state arise from the Constitution and are defined by
legislation, they must override and redefine the common law rules.
27 The discrepancy is underlined by the fact that such caring services may also be
provided by commercial agencies at different tariffs.
28 As suggested in part 3 of this chapter (below), training is one form of support that
might reasonably be expected.
328 Chapter 8

• conditions of employment;
• wage differentials and inequality;
• the likely impact of any proposed condition of employment on current
employment or the creation of employment; and
• the possible impact of any proposed conditions of employment on the
health, safety or welfare of employees.

The Minister, in turn, must ‘consider’ the recommendations made by the

Commission as well as a report prepared by the Director-General of
Labour when making a sectoral determination. Yet the outcome, as we
have seen, is that the minimum wage for domestic work is set at a uniform
rate at the bottom end of the minimum wage scale.

This points at a further dimension of the problem: the Department of

Labour fails to take into account different levels of skill and experience
amongst domestic workers when determining minimum wages and,
instead, treats domestic work as uniformly unskilled.29 It is important to
interrogate the reasons for this approach. It is suggested that the factors
listed in section 54(3) of the BCEA prioritise a set of economic
considerations in which the interests of individual employers weigh
heavily and which do not necessarily call for a broader conception of the
value of domestic work.30 In particular, no consideration appears to be
given to what may be termed the extrinsic value of domestic work, such as
its contribution to value chains of which the domestic employer forms part,
or the social value of caring work which the state may otherwise have
needed to provide.

These omissions are mutually reinforcing. Failure to consider the

further dimensions of domestic work when determining its market value
perpetuates its construction as amounting, in essence, to no more than
menial services performed by the individual worker for the individual
employer. The effect is that minimum wages are premised on the most
precarious form of domestic work, combined with what is perceived as the
weakest element on the demand side for domestic services (the individual
employer), to the exclusion of commercial employers and the possibility of
subsidy for services performed on behalf of the state.

This is not to suggest that the factor of affordability to individual

employers, who constitute a critical part of the market for domestic
services, should be disregarded. Indeed, the spectre of job losses arising
from wage increases has frequently been raised in the decade since SD 7
took effect. However, it has taken on little substance. To the extent that
domestic workers perform a necessary function in the economy, job losses

29 See parts 5.2.8.2 and 7.6 of Chapter 3 (above).

30 For a more sophisticated illustration of the calculation of domestic workers’ wages
with reference to variables including comparable work in the hotel industry and
certain other sectors, see Flückiger & Luzzi (n 21 above) esp Chapter 4.
Constructing an integrated model for the regulation and enforcement of domestic workers’ rights 329

are likely to be marginal.31 Employers of domestic workers who depend on

the services of those workers as household managers and carers in order to
pursue their own careers have no option but to make provision for their
remuneration. Employers who are unable to accommodate a particular
increase are likely to resort to the orthodox alternative of employing their
workers for fewer hours. For more highly-skilled workers this could mean
working shorter periods for more employers at a higher rate of pay.

The argument, in other words, is that the factor of affordability does

not create an absolute barrier to a market-related and socially appropriate
scale of wages. It should be recognised that domestic employers are not
uniformly in straitened circumstances and, specifically, that financial
constraints on certain employers cannot justify the provision of domestic
service to all employers at less than its value. To the extent that this is
happening, it places the burden on domestic workers of subsidising their
employers by the difference between the wages they receive and the value
of the services they provide.

Arriving at a model for calculating the value of domestic work and

translating it into scales of minimum wages, taking into account different
levels of skill and distinctions between different categories of users of
domestic services, calls for more detailed research than is possible within
the limits of this study. It is, however, noteworthy that such an approach
is implicit in the decent work agenda of the ILO. Recommendation 201
calls on member states to adopt policies and programmes to ‘encourage the
continuing development of the competencies and qualifications of
domestic workers, including literacy training as appropriate, in order to
enhance their professional development and employment opportunities’.32
Such policies are clearly incompatible with a conception of domestic work
as being inherently unskilled or a failure to recognise the ‘competencies
and qualifications of domestic workers’ when determining minimum
wages. Indeed, the need for what may be termed the professionalisation of
domestic work flows logically from the exercise of seeking to arrive at a
realistic valuation of domestic work in all its forms.

2.4 The professionalisation of domestic work

The perception of domestic work in South Africa as being inherently

unskilled is bound up with the lack of criteria for measuring the skills

31 As could be said of the initial imposition of minimum wages for domestic workers by
SD 7: see T Hertz ‘Have minimum wages benefited South Africa’s domestic service
workers? African Development and Poverty Reduction: The Macro-Micro Linkage:
Forum Paper (2004) at http://www.wiego.org/occupationalgroups/pdfs/
South%20Africa_Hertz_Minimum_Wages_for_Domestics.pdf (accessed 23 June
2009); T Hertz ‘The effect of minimum wages on the employment and earnings of
South Africa’s domestic service workers’ Development Policy Research Unit Working
Paper 05/99, University of Cape Town (2005).
32 Art 25(1).
330 Chapter 8

which domestic workers possess and, specifically, the general absence of

appropriate training programmes or recognised qualifications in the forms
of work done by domestic workers. It has been noted that an accredited
General Education and Training Certificate: Domestic Services was
launched in 2012.33 It is too early to judge the accessibility and impact of
this programme, which appears to be offered by a limited number of
private institutions only, and more research is needed to assess its
effectiveness in beginning to foster a concept of domestic work as ‘work
like any other’. However, it seems true to say that the guideline contained
in article 25(1) of Recommendation 201 (above) has still to be acted upon.

It has been argued that professional training for domestic workers is

critically important not only in enhancing workers’ career prospects both
within and outside the domestic sector but also in ‘reducing the inequality
between worker and employer and challenging the perception of the
domestic worker as a “lesser being”’.34 It therefore does not seem adequate
to leave such training to private service providers and market forces, which
are likely to exclude the vast majority of domestic workers. If state policy
relative to this sector were to be consistently based on an appreciation of
the social value of domestic work as well as domestic workers’ right to
dignity and equal treatment, it is submitted that the above certificate and
supplementary qualifications should be standard offerings at public further
education colleges, together with access to bursaries and other forms of
support available to students in general.35 A detailed analysis of existing
programmes at public and private colleges is needed to evaluate the extent
to which this need is being addressed. On the available evidence it seems
safe to say that the availability of vocational training for domestic workers
is extremely limited. A positive feature, however, is that a national
framework for its development is in place.36

Based on the principles of transformative constitutionalism and the

decent work agenda,37 it is possible to suggest certain criteria by which that
development should be guided. In the first place, it is important that
training should be generic rather than sector-specific in order to open new
occupational opportunities and career paths to domestic workers rather
than locking them into their existing line of work.38 This would be

33 See part 5.3 of Chapter 5 (above).

34 As above.
35 For background information, see Department of Higher Education and Training
Further education and training: A guide to opportunities for further learning 3rd ed (undated)
http://www.dhet.gov.za/LinkClick.aspx?fileticket=tnnvPWQsITs%3D&tabid=93&m
id=501 (accessed 13 May 2013), where 50 colleges are listed: 26-33.
36 Ie, in the form of the National Qualifications Framework established in terms of the
South African Qualifications Authority Act 58 of 1995 and the Services Sectoral
Education and Training Authority, under which the GETC: Domestic Services (n 33
above) falls.
37 As discussed in Chapter 2 and part 4 of Chapter 3 (above).
38 As noted already, the GETC: Domestic Services (n 33 above) sets a positive precedent
by setting out to equip trainees with skills relevant to at least six sectors other than the
domestic work sector. The ‘unit standards’ on offer range from 12 core subjects
Constructing an integrated model for the regulation and enforcement of domestic workers’ rights 331

consistent with the principle of using wages paid for comparable work in
other sectors as one point of reference in determining minimum wages in
the domestic sector, as discussed above, and would also be an affirmation
of domestic workers’ right to equality with workers in other sectors.

A second criterion is that access to training for domestic workers

should not be limited to purely vocational training. Rather, domestic
workers should be enabled and encouraged as much as other workers to
engage in all forms of adult education, including academic education and
‘worker education’ aimed at promoting the development as citizens as well
as producers. In this regard the International Federation of Workers'
Education Associations (IFWEA):

recognises and addresses the need for a broad approach to workers'

education, including the importance of the arts, culture, literature and history
in the curriculum. In that sense, IFWEA embraces the 'liberal adult
education' tradition in workers' education, as an essential strand of
democratic life and civil society.39

To this the General Secretary of IFWEA adds:40

The philosophy, value and ethics of worker’s education are based on the
inalienable right of adults to lifelong learning as a cornerstone of democracy.
Where there is no democracy, workers’ education directs itself towards
building it. Where democracy exists, workers’ education examines, extends
and entrenches it.

Taken together, these criteria have far-reaching implications. Most

obviously, recognising and developing the vocational skills of domestic
workers would make wage differentials unavoidable and make it necessary
for SD 7 to stipulate minimum wage levels appropriate to different skills
levels in the sector. This, in turn, would make it necessary to develop the
necessary indicators required to identify skills levels in a manner consistent
with domestic workers’ right to fair labour practices. The likely result
would be, at very least, an increase in the wages of ‘skilled’ and ‘semi-
skilled’ workers who are currently placed at the bottom of the minimum
wage spectrum within the economy as a whole.

No less importantly, meaningful training would contribute to

changing power relations between worker and employer. The perceived

38 concerned with cleaning and housekeeping tasks to 14 ‘fundamental’ subjects, ranging

from numerical and communication skills to time management, and 47 electives
including 16 concerned with cooking, nine concerned with child care, three concerned
with environmental awareness and three concerned with entrepreneurship: SAQA
Registered Qualification: GETC: Domestic Services http://regqs.saqa.org.za/
showQualification.php?id=23853 (accessed 13 May 2013).
39 ‘IFWEA’s role’ http://ifwea.asocion.com/about-ifwea/activity/ (accessed 13 May
2013).
40 S Ryklief ‘Adult learning as a global challenge’ (2009) www.ifwea.org/educational-
resources/ (accessed 13 May 2013).
332 Chapter 8

unskilled and dependent status of the worker – ‘she can be thankful that
I’m employing her’ – has a self-perpetuating logic. It is worth recalling the
following objectives of the GETC: Domestic Services:41

• Raising the self-esteem, personal growth and income of domestic workers

• Creating new learning and career paths and progression opportunities for
domestic workers, either as employees or through starting their own
businesses
• Achieving recognition for the contribution of domestic services to the
economy.

Regardless of the extent to which this particular qualification succeeds in

achieving these objectives, it is submitted that systematic expansion of
education and training opportunities for domestic workers would go a long
way towards transforming what is currently seen as unskilled and
subordinate work into work ‘like any other’ and narrowing the social gap
between employer and worker. This, as argued below, is also a critical
factor in laying a basis for the enforceability of domestic workers’ rights.

2.5 Transforming top-down regulation into responsive

regulation

Another important theme in the literature on domestic work is the

mismatch between the existing labour regulatory framework and the
typical model of domestic work. Much the same can be said of non-
standard employment in general; the basic reason, it is generally accepted,
lies in the focus of labour law on standard or ‘typical’ employment,42
driven by the political and economic imperatives of regulating relations
between employers and workers in major industrial sectors who,
historically, were the first to assert the power to bargain collectively.
Despite some adjustment in recent years, this focus has remained
essentially unchanged. Certainly, the law and its enforcement mechanisms
have never been geared to dealing with relations between domestic
workers and employers in private homes.43

This study has gone on to draw some more specific conclusions. First,
what is said above does not apply to entire domestic sector but, essentially,
to the sphere of individual employment. Any regulatory model for the
sector must take account of the reality that domestic services are performed
in a variety of relationships and should seek to achieve an equitable
balance between the private and commercial spheres. If this is not done,
there is a danger that the marginalisation of workers in private homes will
be perpetuated.

41 Cited in part 5.3 of Chapter 5 (above).

42 As discussed in Chapter 3 (above).
43 As discussed in Chapter 5 (above).
Constructing an integrated model for the regulation and enforcement of domestic workers’ rights 333

Most importantly, however, it has been argued that a regulatory

framework capable of achieving the transformative objectives advocated in
the various chapters will need to move beyond the ‘command-and-control’
model that characterises much of South Africa’s labour regulatory
framework and seek a more inclusive approach as reflected in the theories
of ‘responsive’ or ‘reflexive’ regulation.44 Braithwaite sums up the essence
of what this means:45

[R]esponsive regulation makes the explanatory claim that legally pluralist

deliberative institutions that engage multiple stakeholders are most likely to
secure the regulatory purposes of such institutions. . . . [It] values flexibility,
citizen participation in crafting contextually attuned solutions to problems
and parsimony in recourse to coercion.

Hepple goes on to link this concept to the idea of ‘meaningful engagement’

developed by the South African Constitutional Court, not necessarily with
the adversarial connotation that the court has given it in some cases but:

primarily as a process of exchange of information and learning about the

parties’ respective positions, leading to a better understanding of the issues,
followed by persuasion based on reasoned argument, with a view to reaching
agreement.46

In the context of domestic work, it was argued, this foreshadows radically

reconstructed regulatory institutions at sectoral and sub-sectoral levels.47 It
was also suggested that such an evolution would embrace, and transform,
not only regulation in the strict sense – that is, rule-making within the
applicable constitutional and statutory boundaries – but also the
enforcement of rules.

Like many reforms, this raises challenges of a practical as well as a

theoretical nature in transcending the entrenched barriers of existing
institutions. At a practical level the most obvious challenge lies in the need
for participation of the ‘multiple stakeholders’ in the sector. This includes
individual domestic workers and employers whose current lack of
organisation geared to such participation is a factor that helps to account
for the ‘top-down’ approach embodied in SD 7. The possibilities of
developing appropriate forms of organisation of domestic workers in
particular are discussed in Chapter 7 (above) and the implications are

44 As discussed particularly in part 4.5 of Chapter 2, part 4 of Chapter 3 and part 2.1 of
Chapter 5 (above).
45 J Braithwaite Regulatory capitalism: How it works, ideas for making it better (2008) 163, as
cited in B Hepple ‘Negotiating social change in the shadow of the law’ (2012) 129
South African Law Journal 248 254. To the cited passage the author adds: ‘Yet
deterrence and incapacitation have vital roles in responsive regulation’.
46 Hepple (n 47 above) 270; and see discussion in part 3 of Chapter 3 (above).
47 In parts 8 and 9 of Chapter 1 (above) a case is made out for the interconnection
between ‘responsive’ regulation and the decentralisation of regulatory processes ‘in
that responsive regulation implies some form of devolution if an alternative to
“traditional centralised interventions” is to be created’: Chapter 1 n 80 (above).
334 Chapter 8

considered more fully in the next part of this chapter. Before proceeding to
that discussion, it will be useful to look more closely at some of the
theoretical considerations that help to define the exercise.

An obvious starting point in conceptualising any institutional reform

is to clarify its purpose. One answer that has emerged from the research is
the need to engage with the extremely fragmented and complex nature of
the sector, making it difficult if not impossible for centralised legislative
and enforcement structures to engage effectively with its widely dispersed
‘stakeholders’. This barrier can be addressed by enabling employers and
workers, who have the most detailed knowledge of the sector and are in the
best position to engage with problems of rule-making as well as
enforcement, to identify mutually acceptable solutions. This calls for
legislative processes and enforcement structures designed to accommodate
engagement of this nature.

The diverse forms of domestic work moreover suggest the need for
sub-sectoral processes in addressing issues that may be peculiar to certain
parts of the sector. Most obvious is the division between what may be
termed the ‘private sphere’ (domestic workers working for individual
householders) and the ‘commercial sphere’ (domestic workers working for
commercial employers).48 Problems experienced in the former, for
example, relating to housing or the privacy of live-in domestic workers,
may not be found in the latter and vice versa. Similarly, promoting legal
compliance by commercial employers can, at least up to a point, be
pursued by means of existing institutions which are largely ineffective in
the private sphere. General rules and institutions applicable to the sector as
a whole, such as those contained in the BCEA and SD 7, are therefore
likely to have an uneven impact, indicating the need for rules and
institutions responsive to different sets of conditions. To achieve this, the
regulatory framework must accommodate input by the different role-
players concerned.

A further guiding principle is the need for regulation to embrace the

effective implementation of all the fundamental rights of domestic workers
that are manifested in the employment context. While SD 7 reflects an
acknowledgement of the need for sector-specific regulation, it addresses
only a limited range of rights falling within the scope of the BCEA.49
Important as these rights are, no less important rights are regulated by the
LRA –such organisational and collective bargaining rights, the EEA and

48 This does not prejudge the question of whether comprehensive regulation of domestic
work as a ‘category’ spanning different sectors is preferable, or whether the regulation
of such work performed in other sectors can more appropriately take place in the
context of the regulatory frameworks of those sectors. In part it is a question on which
more research is needed; in part it is one that would need to be addressed in the
process of revisiting the regulatory framework of the existing domestic sector.
49 Which, moreover, are adapted only to a minimal degree: see part 6.1 of Chapter 3
(above).
Constructing an integrated model for the regulation and enforcement of domestic workers’ rights 335

other statutes in forms that are relatively ineffective in the domestic sector.
In these and other areas the need for sector-specific (or sub-sectoral)
regulation is arguably no less compelling than in the case of basic
conditions of employment.50 Direct involvement of stakeholders would be
crucial to such reformulation.

2.6 The economic context

Finally, it has been noted that these regulatory challenges are not posed in
the abstract but in the context of a period of unprecedented uncertainty
affecting the global economy in the aftermath of the 2008 recession.51
Policies of austerity and credit deflation resorted to in many countries have
had a chilling effect on economic activity internationally. Periods of
economic stagnation are not auspicious for labour law reform except in a
negative sense; particularly in Europe, drastic inroads have been made on
workers’ rights and collective bargaining institutions in a highly
contentious effort at reducing the cost of labour as well as public
expenditure.52 On the face of it, the outlook for far-reaching development
of the regulatory framework to extend effective protection to domestic
workers and other precarious workers in a general climate of deregulation
(widely termed ‘neo-liberal’) is thus not promising.

But, perhaps inevitably, the neo-liberal agenda has produced what

might be termed a ‘counter-movement’53 in the form of widespread protest
and resistance. This is not the place to consider possible political and
legislative developments in the period ahead, which form the subject of
daily analysis and debate in the media as well as scientific publications. It
has been argued, however, that the decline of traditional labour law and
collective bargaining institutions set in motion by the processes of
globalisation over the past three decades has been intensified by the effects
of the 2008 crisis and is unlikely to be reversed by protest alone. In this
climate, it was suggested, the agenda of responsive regulation may be seen
– even more so than at the time it was originally put forward – as an

50 Training of domestic workers in terms of the Skills Development Act (as discussed
above) is another example; structured participation of domestic workers and
employers in the Services SETA, it is submitted, is essential in identifying training
priorities and effective delivery mechanisms: see discussion in part 5.3 of Chapter 5.
This applies also to the challenge of further adapting SD 7 to the needs of the sector in
terms of minimum wages as well as other provisions where the requirements of the
BCEA are merely restated.
51 See part 5 of Chapter 1 (above).
52 For a recent analysis, see S Deakin & A Koukiadaki ‘The sovereign debt crisis and the
evolution of labour law in Europe’ Paper presented at the ILO Conference on
Regulating for Decent Work, Geneva, 3-5 July 2013. The connection between labour
law and economic policy is discussed in a paper presented by the present author at the
same conference, titled ‘Regulating the informal economy: Unpacking the oxymoron’.
Drafts of both papers were on the conference website but publication details were not
yet known at the time of writing.
53 Ie, in the Polanyian sense as outlined in Chapter 1 n 75 (above).
336 Chapter 8

alternative to ‘an all-or-nothing choice between the laissez-faire policies of

the right and the traditional centralized interventions of the left’.54

From a business perspective, regulation attuned to the realities of a

specific sector or sub-sector may be a means of avoiding the ‘rigidities’ or
other problems associated with centralised legislation55 as well as the
political protest and instability provoked by unmitigated deregulation. In
poorly regulated parts of the economy, on the other hand, regulatory
structures of this kind may offer a means of addressing precisely those
features which render traditional forms of regulation ineffective and make
it possible for the first time to create workable systems of rule-making and
enforcement. To the extent that these sectors are characterised by a relative
absence of regulatory institutions and the vested interests associated
therewith, the development of sector-specific structures would be
facilitated and could provide points of reference for traditional sectors
where alternatives to deregulation are being sought.

This applies also to the crucial question of worker organisation and, in

sectors such as the domestic sector, organisation of employers. Regulation
that is responsive to the needs of a sector presupposes engagement with
and input by key role-players in that sector, including organised workers
and employers. The erosion of industrial trade unionism and collective
bargaining coverage has been a feature of the era of globalisation which is
likely to be accelerated in the current phase of structural instability. Once
again, the development of new forms of worker organisation in
traditionally unorganised sectors, informed by the actual needs and
circumstances of the workers concerned rather than the assumed
applicability of the industrial trade union model, could suggest ways for
trade unions in industrial sectors of organising more effectively and
combating their decline. This approach also offers a basis for the
organisation of employers and others stakeholders in sectors where such
organisation is absent or ineffective.

In Chapter 7 (above) the organisation of domestic workers was

considered from this perspective. Though discussed in general terms only,
a number of tentative principles emerged which, if thought through and
adapted, may point towards improved means of organisation in other
sectors also. We now turn to considering more specifically the role of
worker organisation in this context.

54 I Ayres & J Braithwaite Responsive regulation: Transcending the deregulation debate (1992)
abstract http://islandia.law.yale.edu/ayres/respons.htm (accessed 10 July 2013).
55 In other words, through the creation of appropriate fora where existing shortcomings
in the regulatory system can be addressed and more appropriate arrangements worked
out – for example, for the accommodation and regulation of non-standard forms of
work in different industries.
Constructing an integrated model for the regulation and enforcement of domestic workers’ rights 337

2.6 The role of organisation

Perhaps the most crucial proposition emerging from Chapter 7 relates to

the multi-faceted nature of worker organisation within a paradigm of
responsive regulation. Rather than prioritising terms and conditions of
employment as its central focus and responding reactively to other issues
as and when they may arise, it was argued, an organisation capable of
organising domestic workers – or, by implication, other categories of non-
standard workers outside formal workplaces or industries – would need to
have a broader agenda responsive to workers’ interests both inside and
outside the workplace. The purposes of such organisation, it was
suggested, would include:

• defending the rights of domestic workers by appropriate methods, ranging

from negotiating and mediating to taking legal action or exerting pressure
through campaigning or other means;
• representing the interests of domestic workers in bargaining or other
forums, implying the need for processes of mandating workers’
representatives;
• participating in regulatory bodies where general rights and duties (for
example, relating to organisational rights) are adapted to the conditions of
the sector and specific regulations (for example, relating to wage
differentials) are formulated; and
• monitoring compliance with laws and regulations, creating
communication channels to make this possible and triggering enforcement
processes where necessary.56

These purposes are consistent with the vision of transformative

constitutionalism and the ILO’s decent work agenda, as analysed in
Chapter 2 (above). Taken together, they include not only the articulation
but also the realisation of the basic rights of domestic workers as reflected
in the Bill of Rights and, specifically, in Convention 189 interpreted in light
of the ILO’s vision of decent work. Furthermore, this objective is posed not
simply as a demand directed at government but as a process of which the
basic elements, including appropriate regulatory structures, have still to be
conceptualised and operationalised. Most important is the fact that
organised domestic workers would need to participate in this process. The
programme of such an organisation or organisations would therefore need
to address every pertinent question of policy and law forming part of the
transformative agenda, ranging from the design of appropriate wage-
regulating and social security institutions to the development of a more
effective framework for the regulation of migrant labour. Its capacity, like
that of an employers’ organisation, to engage on these issues is a
prerequisite for any transition from ‘command-and-control’ regulation to
responsive regulation. Lack of capacity to do so would in practice,

56 Part 8.3 of Chapter 7 (above).

338 Chapter 8

regardless of legal formulae, leave policy-making and legislative power

where it has always been and, by the same token, leave domestic workers
and employers as competing petitioners for solutions to their problems

The implications of such a development were considered in more

detail in Chapter 7, notably the need for the empowerment of domestic
(and other) workers in terms of education and training to progressively
equip them for participation in the regulatory process. The practical
meaning of such empowerment, including the material and intellectual
resources needed to undertake it, fall beyond the scope of this study; these
are issues that can only be addressed by the organisations concerned. The
point to emphasise here is that the interaction between organisation and
regulation bound up with the construction of a responsive regulatory
framework would be transformative in a very fundamental sense: it would
break with the legacy of state paternalism in the domestic sector (as in
others) to a significant extent by enabling employers and workers to
identify their own problems and design their own solutions. Arguably, this
could generate a virtuous cycle: regulatory structures that are perceived as
meaningful and accessible would encourage participation by role-players
and the development of organisation for this purpose. If this is so, the
process would have the potential of becoming both self-perpetuating and
trend-setting.

To sum up: transformative constitutionalism, in the shape of the

realisation of domestic workers’ basic rights along the lines proposed in
Chapters 3 to 6 above, cannot be understood as being independent of the
self-organisation of domestic workers. On the contrary, it would need to be
central to the purpose of such organisation. To say this is not to be
prescriptive; it is assumed that any organisation committed to the
empowerment of its members will be deeply democratic and that its
activities will be determined by its members alone. It is only to reiterate
that, without the collective participation of domestic workers, the
transformative project could not proceed beyond a certain point.
Organised domestic workers, to put it more strongly, may be seen as the
driving force of such a project. This is so because employers may
experience no burning need for change, although they could be persuaded
of the advantages of supporting it; and, while the state is ultimately
responsible for implementing the Bill of Rights in the labour field, it cannot
be left to the Department of Labour to do so, as has been demonstrated
since 1994. To say this is simply to restate the need to transcend the
benevolent state paternalism that has thus far been the subject of debate.

Nor does the possibility of organised domestic workers taking the

initiative seem particularly idealistic. The spirit and determination shown
by organisations of domestic workers in many countries in the campaign
Constructing an integrated model for the regulation and enforcement of domestic workers’ rights 339

of the International Domestic Workers Network57 leading up to the

adoption of Convention 189 reflected a widely-shared commitment to
transformation of the sector. The history of domestic worker organisation
in South Africa58 has reflected a similar commitment. The final part of the
chapter, accordingly, seeks to outline the implications of such an approach
from the standpoint of the organisation of domestic workers on a
transformative agenda.

3 Organising for transformation

Nancy Fraser’s concept of ‘social justice’ and the strategy of ‘non-reformist

reform’ were used in Chapter 2 (above) in giving further content to the
transformative objectives of the South African Bill of Rights and the ILO’s
decent work agenda. By the same token, these concepts can be used in
framing the organisational and programmatic challenges bound up with
the realisation of domestic workers’ basic rights.59 This calls for a
combination of the ‘distributive’60 and ‘recognition’61 paradigms in a way
that will address the practical manifestations of injustice as well as the
causes of injustice. The model of responsive regulation, it has been argued,
offers a basis for achieving this. As argued in Chapter 3 (above), responsive
regulation

presupposes direct representation of domestic workers and employers at

sectoral and, possibly, sub-sectoral levels. It further presupposes that the
relevant structures would be vested with delegated power to make detailed
rules giving effect within the sector to the general rights extended to all
workers.

Chapters 3 to 6 above set out to suggest some of the outcomes of such an

exercise in terms of the realisation of the basic rights of domestic workers.
Here it will be attempted to restate those outcomes as strategic objectives
of an organisation of domestic workers taking part in such a process.

3.1 The transformation of labour rights

A primary task emerging from Chapter 3 is the need to identify all relevant
rights created by the LRA, BCEA, EEA and other statutes such as the

57 See part 1 of Chapter 1 (above).

58 Outlined in part 5.5 of Chapter 7 (above).
59 In addition to the analysis in part 4.4 of Chapter 2 (above), the discussion below draws
on MHrubec ‘Towards global justice: An interview with Nancy Fraser’ (2004) 40 Czech
Sociological Review 879 http://sreview.soc.cas.cz/uploads/18106336886901b794973fa8
b6856f9d6daa787a_442_6interview11.pdf (accessed 11 July 2013).
60 Taken here as referring to unequal distribution of resources, such as inequitable
minimum wages, and ‘class injustices’ such as the de facto exclusion of domestic
workers from the enjoyment of rights extended to workers in general.
61 Referring to ‘institutionalised disrespect’ based on culture, status and hierarchy, such
as stereotypes of women, non-citizens and the nature of domestic work.
340 Chapter 8

Skills Development Act62 that find inadequate application in the domestic

sector and develop proposals for their reformulation. Below are some of
the most obvious shortcomings that have been noted and possible ways of
addressing them; however, the list is by no means exhaustive, nor do the
proposed solutions purport to be definitive.

3.1.1 The right to engage in collective bargaining

The obstacles to ‘collective bargaining’ involving individual domestic

workers are manifest63 and call for a fundamental rethink of the meaning
of the constitutional right to ‘engage in collective bargaining’ in this
context. Understood in a purposive sense, the right is aimed at enabling
workers doing the same or similar work to engage their employer(s)
collectively in determining matters of mutual interest, including terms and
conditions of employment, given the typical differences in bargaining
power between the individual worker and employer. The term ‘collective
bargaining’ is thus questionable in the present context to the extent that it
is associated with particular forms of engagement by industrial trade
unions at workplace and sectoral levels, as regulated in the LRA.

However, this does not exclude the possibility of alternative and more
appropriate forms of collective engagement in sectors where traditional
collective bargaining is impracticable. It has been suggested that the
development of a forum for workers and employers to negotiate on the
content and annual revision of SD 7, facilitated by the Department of
Labour, could offer a starting point for such engagement in the domestic
sector.64 The nature of such a forum, or alternative means of collective
engagement, would be an important issue for an organisation of domestic
workers to deal with in terms of concrete proposals as well as the
development of capacity to represent its members effectively within any
such forum. The precedent of the private security sector, where the
proclamation of a sectoral determination is informed by collective
bargaining between employers and trade unions in the sector, has been
noted.65 A further example is offered by the negotiation framework in the
domestic sector that has been created in Uruguay. The ILO describes it as
follows:66

[146] … In 2008, following the Committee’s observations on how to move

from unilateral determination by government of the minimum wages of
domestic workers towards a mechanism ensuring full consultation, Uruguay

62 Act 97 of 1998.
63 As discussed in parts 5.2.2 and 6.1 of Chapter 3 (above). However, traditional
collective bargaining may be appropriate between domestic workers who are
collectively employed, such as agency workers, and their employers.
64 See part 7.5 of Chapter 7 (above).
65 As above.
66 International Labour Office Decent work for domestic workers Report IV(1), International
Labour Conference, 99th Session, Geneva (2010), paras 146 and 268.
Constructing an integrated model for the regulation and enforcement of domestic workers’ rights 341

established a new tripartite wage board to negotiate the terms and conditions
of employment of domestic workers, for whom a new occupational category
was introduced (Group 21). The Board’s establishment was fraught with
difficulties since no employers’ representative organization could be found,
and the existing National Confederation of Domestic workers had not yet
been registered as a trade union. Eventually, however, these obstacles were
overcome and the Board met twice in 2008 …
[268] … The Housewives’ League of Uruguay, which was originally created
to revalue unpaid domestic work, agreed to act as the employers’
representatives on the wage board, while the National Trade Union
Confederation agreed that the National Confederation of Domestic workers,
not yet registered as a trade union, could negotiate on their behalf. The
bargaining platform presented by domestic workers included a 1 per cent
increase in remuneration for every two years of seniority, five fully paid days
of leave in the event of the death of a close relative or of an employee’s
marriage, payment of overtime work in accordance with the law, and
compensation for a reduction in the number of hours worked in proportion to
the legal entitlement in case of dismissal.

3.1.2 Determining terms and conditions of employment in line with

decent work

Much has been said of the inadequacy of the existing administrative

process of defining minimum conditions of employment and minimum
wages in the domestic sector by means of SD 7, which has been identified
as an aspect of the systemic undervaluation of domestic work.67 Among
the possible responses that have been suggested is the development of a
negotiating process on these and other issues (as outlined above) together
with the establishment of benchmarks for wage differentials based on skills
levels and, linked to this, measures for systematic skills development or
‘professionalisation’ of the sector.68 Without covering the same ground
again, it is suggested that these are crucial matters for an organisation of
domestic workers to consider and argue for preferred solutions in the
available regulatory forums.69

3.1.3 Extending protection to all domestic workers

It has been noted that the blanket exclusion of workers working less than
24 hours per month from most of the protection offered by the BCEA, SD

67 See part 2.3 of this chapter and parts 5.2.8.2 and 7.6 of Chapter 3 (above).
68 As discussed in part 2.4 of this chapter and part 5.3 of Chapter 5 (above).
69 Linked to this, it has also been suggested that intervention is needed (a) to bring about
a clear stipulation that terms and conditions of employment must be agreed between
the worker and employer rather than simply being ‘supplied’ by the employer as
provided for in sec 29 of the BCEA, see discussion in part 7.7 of Chapter 3 (above),
and (b) to revisit and possibly simplify the employer’s duty to provide the worker with
information in terms of secs 29 and 33 of the BCEA, which at present appears to be
widely disregarded, see discussions in parts 5.2.8.2 and 5.2.9 of Chapter 3 (above).
342 Chapter 8

7 and the Unemployment Insurance Act70 is almost certainly in conflict

with Convention 18971 and that, in terms of article 2 of the Convention, it
is incumbent on government to engage with ‘the most representative
organisations of employers and workers’ as well as organisations
representative of domestic workers and employers of domestic workers to
consider which categories of workers (if any) should be excluded wholly or
partly from the scope of legal protection, subject to the criteria laid down
in the Convention. It is suggested that this, too, is a topic on which an
organisation of domestic workers would need to develop its position, as
well as on the question of the ‘equivalent protection’ to which excluded
workers are entitled.

3.1.4 Effective dispute resolution mechanisms

A number of shortcomings of the labour dispute resolution system, in

dealing with disputes between domestic workers and their employers, have
been noted.72 This raises challenges of a twofold nature.

Developing an appropriate institutional framework

One set of challenges relates to the design of appropriate mechanisms to

supplement the shortcomings of the existing system. It has been noted the
cost of litigation and the delays involved render the Labour Court
practically inaccessible to the vast majority of domestic workers and other
non-unionised workers; any solutions that are adopted would therefore not
be limited to domestic workers but should apply to all workers in a similar
position. The fact that article 16 of Convention 189 expressly calls for
‘effective access’ to courts for domestic workers makes it necessary to
address the question in this context. One way of doing so, as noted in
Chapter 3, is to extend the jurisdiction of the CCMA to deal with certain
claims by low-paid workers over which the Labour Court would otherwise
have had exclusive jurisdiction.73 It would need to be considered from the
standpoint of an organisation of domestic workers whether this solution is
adequate or whether alternative measures are needed to enable workers to
seek legal remedies from which they are currently excluded.

A more complex problem lies in the adversarial nature of the dispute

resolution process in the CCMA and Labour Court which, in practice,
means that dismissal disputes are the only category of disputes that
domestic workers feel able to pursue – in other words, after employment

70 Act 63 of 2001.
71 See part 6.2 of Chapter 3 (above).
72 See parts 5.2.7, 5.2.12 and 7.3 of Chapter 3 (above).
73 However, no proposal has thus far been made to adopt this solution in respect of
automatically unfair dismissals, which remain within the exclusive jurisdiction of the
Labour Court: see LRA, sec 187(1) read with sec 191(5)(b).
Constructing an integrated model for the regulation and enforcement of domestic workers’ rights 343

has terminated. Due to the intimate and personal nature of the

employment relationship it is extremely difficult if not impossible for a
domestic worker, far more so than an industrial worker, to pursue a dispute
with her or his employer during the course of the employment relationship
without rendering that relationship untenable. Much the same can be said
of the remedy of invoking intervention by a labour inspector in the event
of perceived non-compliance by an employer with any provision of the
BCEA or SD 7. It has been suggested that a simplified model of dispute
resolution based on conciliation, information and consensus-seeking
rather than adjudication (including arbitration) and enforcement, over and
above the routine and frequently nominal conciliation hearing by the
CCMA, is called for in the context of the domestic sector and other sectors
where employment relationships are personal rather than collective.
Again, the considered input of an organisation of domestic workers would
be crucial in arriving at a solution.

A related question is the inadequate protection available to individual

domestic workers, particularly those living on their employers’ premises,
against abuse and harassment.74 Arguably, the personal empowerment of
workers75 is a key line of defence and prevention in this regard. In
addition, accessible complaint mechanisms and other remedial measures
called for by Convention 189 would need to be considered and argued for
by an organisation of domestic workers.

Capacity-building

A second set of challenges lies in developing the necessary capacity to

represent workers, or provide them with representation, in existing dispute
resolution forums or in dedicated processes created for domestic workers
and other workers with comparable needs. This would include not only
legal and procedural skills but, perhaps more importantly, negotiating
skills and problem-solving techniques appropriate to the circumstances of
the domestic employment relationship. No less importantly, it has been
suggested that Department of Labour inspectors should similarly develop
a greater focus on advising and seeking compliance by employers, who
may in many cases be unaware of legal requirements, rather than on
enforcement in the same manner as in factories. By its example and
through advocacy an organisation of domestic workers could play a major
part in operationalising a more creative system of dispute resolution which
might well set a precedent for other sectors where levels of conflict have
reached damaging proportions and existing dispute-resolution structures
are proving ineffective. The mining sector looms large in this regard.

74 See parts 5.2.5 and 7.5 of Chapter 3 (above).

75 As discussed in part 5.3 of Chapter 5 (above).
344 Chapter 8

3.1.5 The need for greater clarity in defining employment standards

Many rights and duties of workers and employers are defined broadly in
labour legislation, leaving it to the parties to define them more precisely in
workplace policies or by means of collective bargaining. In most of the
domestic sector, for obvious reasons, this is unlikely to happen in any
systematic way, thus leaving areas where workers and employers may be
genuinely uncertain of their respective obligations and creating scope for
conflict. Two such areas have been noted in particular: lack of clarity as to
circumstances where compulsory medical testing of domestic workers may
be justified, and the dividing line between ‘appropriate’ and ‘inappropriate’
work for young workers aged between 15 and 18.76 Questions such as
these are classic examples of issues where engagement between
organisations of domestic workers and employers would be essential in
arriving at workable answers and to which an organisation of domestic
workers would need to give careful attention.

3.1.6 The protection of live-in domestic workers

Domestic workers who live on their employers’ premises are subject to the
highest degree of control, hence also to the risk of abuse, and most in need
of protection. Such protection is relatively limited in terms of the LRA, the
BCEA and SD 7 and may fall short of the standards set by Convention 189
and Recommendation 201.77 It is suggested that the following aspects in
particular need to be taken up by an organisation of domestic workers:

• Stipulating the criteria for ‘decent’ living conditions and food ‘of good
quality’ to be provided in light of the requirements of Recommendation
201;
• Providing workers with reasonable time off to seek alternative employment
and accommodation after notice of termination has been given by the
employer; and
• Defining workers’ right to have access to or contact with their families,
taking into account any family responsibilities they may have.

3.2 Transformation of access to social security

Access to social security to enable workers to cope with ‘transitions’ in

their lives involves the allocation of considerable resources, either by the
state or by workers and employers, and, as argued in Chapter 4 (above), is
most effective when implemented on a national rather than a sectoral
basis. To this extent social security provision is dependent on regulation by
central government rather than by sector-specific regulatory structures. In

76 See parts 5.2.4, 5.2.6 and 7.4 of Chapter 3 (above).

77 See parts 5.2.10, 5.2.11 and 7.8 of Chapter 3 (above).
Constructing an integrated model for the regulation and enforcement of domestic workers’ rights 345

contrast to seeking the transformation of labour and employment rights,

this means that an organisation of domestic workers would need to engage
with central government structures, most probably in alliance with civil
society organisations representing similar interests, in seeking solutions to
the social security deficit that domestic workers in South Africa (like so
many others) are experiencing.

The starting point is that access to social security is a key aspect of

decent work and, in South Africa, ‘everyone’ has the constitutional right
‘to have access to … social security, including, if they are unable to support
themselves and their dependants, appropriate social assistance’.78 Despite
this, and despite increasing expenditure, it was concluded that state policy
is falling short of achieving ‘progressive implementation’ of this right.79 In
particular, the majority of domestic workers are effectively excluded from
social insurance measures to which workers in standard employment
generally have access. For a number of reasons, not least because of the
marginalisation it involves, affirmative measures such as the expansion of
social grants cannot be seen as a sustainable means of meeting this deficit.
The challenge is therefore to conceptualise a restructuring of the regulatory
framework and institutions in a way that is capable of meeting the
constitutional standard.

A central means of achieving this, it was suggested, would be the

development of a national social security system that could cover domestic
workers and other non-standard workers on a basis of cross-subsidisation.
A combination of measures could be considered towards achieving it,
including affirmative measures such as a universal non-means-tested older
person’s grant. From the standpoint of sustainability it is important that
the emphasis should fall on transformative strategies, such as the
institutionalisation of informal social security devices80 and expansion of
forms of social insurance involving contributions by employers of
domestic workers, which could be explored at the sectoral as well as the
national levels. A precedent is offered by the extension of unemployment
insurance coverage to domestic workers.81 Various incentives could be
designed to encourage compliance by employers with requirements of this
nature, including tax credits or vouchers.82 Combined into a coherent
policy, it was argued, such measures would have transformative
implications for society as a whole.

78 Sec 27(1)(c) of the Constitution of the Republic of South Africa, 1996. In Khosa &
Others v Minister of Social Development & Others; Mahlaule & Another v Minister of Social
Development 2004 (6) BCLR 569 (CC) it was ruled that ‘everyone’ includes not only
citizens but permanent residents. Temporary and undocumented residents therefore
remain excluded.
79 See part 5.3 of Chapter 4 (above).
80 See especially part 3 of Chapter 4 (above.
81 In terms of the Unemployment Insurance Act 63 of 2001 (UIA).
82 As discussed in part 5.2 of Chapter 5 (above).
346 Chapter 8

Designing and implementing such a policy presents an extremely

complex challenge, presupposing political will on the part of the state to
give effect to its constitutional mandate, as well as participation by large
numbers of non-state parties. This would include organisations of
domestic workers. It has been emphasised that the drive for adequate
social security provision for ‘everyone’ should be understood as part of a
multi-faceted strategy for the empowerment of domestic workers involving
different but mutually reinforcing policy objectives. The need for such a
strategy, it has been noted, is accentuated rather than undermined by the
current state of the global economy; as the ILO has argued, responses to
the crisis should include ‘development that more effectively creates jobs
and sustainable enterprises, respects workers’ rights, promotes gender
equality, protects vulnerable people’.83 The development of social security
as a means of extending protection to vulnerable people may therefore be
seen as part of an alternative to the ‘neo-liberal’ insistence on austerity
policies and cutbacks in public spending. Domestic workers would
therefore not be alone in pressing for transformative solutions but would
be able to enter strategic alliances both nationally and internationally,
underpinned by a global vision of social justice and decent work.

In South Africa it is arguable that much of the initiative in creating and

sustaining the political will on the part of government to embark on the
development of a social security system compatible with the requirements
of the Bill of Rights would need to come from organisations representing
the interests of marginalised workers and the socially excluded. In-depth
research would need to accompany the process, drawing on economic
theory as well as experiments internationally at creating institutions
capable of supporting transformative strategies. Such research and
advocacy within the domestic sector is likely to depend on the energy
generated by organised domestic workers. The current discussion on a new
social security system for South Africa, however, creates a positive climate
for seeking consensus based on the input of all parties, including employers
and workers.

3.3 Transformation of the enforcement process

Despite the imbalance of power between the domestic worker and

employer, it has been argued that the intimate nature of the employment
relationship creates opportunities for domestic workers to exert influence
on employers, not only in shaping their terms and conditions of
employment but also to respect their rights.84 The statutory process for

83 ILO ‘Recovering from the crisis: A global jobs pact’ Adopted by the ILC at its 98th
Session, Geneva (19 June 2009) para 7 http://www.ilo.org/wcmsp5/groups/ public/-
--ed_norm/---relconf/documents/meetingdocument/wcms_115076.pdf (accessed 28
June 2013). See also the Preamble to ILO Recommendation concerning National
Floors of Social Protection No 202 of 2012.
84 See part 2.1 of this chapter (above).
Constructing an integrated model for the regulation and enforcement of domestic workers’ rights 347

securing compliance with the BCEA, SD 7 and the UIA, in contrast, is

based on the intervention of labour inspectors to investigate alleged
violations and, if necessary, set in motion an enforcement procedure that
may end in the Labour Court.85 The problem with this sytem, Ally argues,
is that:

it disregards the emotional and affective dimensions of the domestic

employment relationship and, instead, seeks to ‘depersonalise’ and
‘formalise’ it.86 The consequence … is that the state becomes ‘the proxy for
workers – their articulator, representative and protector’.87

Such an approach to the enforcement of workers’ rights is clearly

inconsistent with the transformative objective of empowerment of
domestic workers and, arguably, helps to explain its relative ineffectiveness
in securing compliance by employers. An organisation of domestic
workers, it is suggested, would self-evidently base itself on the position of
the worker and the need to reinforce it. The isolation of the worker in the
employer’s home leaves very little scope for the intervention of union
representatives to intercede, as would be the case in formal workplaces.
This suggests a strategy of enforcement proceeding from the need to equip
workers with knowledge of their rights together with the ability to
negotiate compliance with the employer. An organisation of domestic
workers would thus need to place exceptional emphasis on the
development and empowerment of workers to act as custodians of their
own rights at an individual level. This, it is suggested, should be seen as the
ultimate line of defence as well as the bottom line in securing compliance
with workers’ rights, of which all other mechanisms should be supportive.

Other strategies for promoting compliance outlined in Chapter 5

would likewise depend on the involvement of organised domestic workers.
This refers in particular to activities aimed at raising awareness of rights
and responsibilities amongst employers and workers, identifying
appropriate incentives for employers to comply with regulation and
developing alliances with civil society organisations – for example, advice
offices – that could play a role in monitoring compliance. Needless to say,
all strategies of this nature might be looked at as possible precedents for
promoting compliance in other sectors where existing enforcement
procedures are relatively ineffective.

Similarly, an organisation of domestic workers would have an

important role in conceptualising and advocating a dispute-resolution
system suited to the realities of the domestic sector and other non-standard
sectors, based on consensus-seeking rather than the adversarial, and

85 The process is outlined part 2.3 of Chapter 5 (above).

86 Ally (n 7 above) 95-96.
87 Ally (n 7 above) 88.
348 Chapter 8

potentially costly, nature of proceedings in the CCMA and the Labour

Court.88

Further possibilities have been noted of alternative mechanisms of

state supervision that might reinforce rather than undermine domestic
workers’ ability to deal with their employers on a one-to-one basis.89
Exploring such possibilities, it is submitted, should be an important focus
for an organisation of domestic workers in consultation with other
stakeholders in a framework of responsive regulation. Recognising that
compliance in the individual employment relationship must ultimately
depend on commitment to shared norms by the employer as well as the
worker, the close relationship between the individual worker and employer
would need to be replicated by meaningful engagement between
organisations of workers and employers in seeking mutually acceptable
rules as well as mechanisms for monitoring and enforcement. Such a
process would be crucial to moving the discourse from that of enforcement
(by the state) to one of compliance (driven by the parties themselves).

3.4 Transformation of the migrant labour system

Migrant domestic workers form an integral part of the domestic workforce

in South Africa but generally lack the formal skills that would qualify them
to receive work permits. Despite this, it has been argued, the flow of
migration driven by socio-economic factors in sub-Saharan Africa is
unlikely to diminish or cease and the current exclusionary policy is
ultimately unsustainable.90 This policy, it was also suggested, is
inconsistent with the constitutional values of human dignity, substantive
equality and freedom in the context of a multi-cultural and cross-national
society.91 In particular, the notion of social justice confined to ‘citizens’ in
a world characterised by large-scale migration was criticised;92 against it,
Fraser’s emphasis on the element of ‘cultural recognition’ was endorsed as
part of a concept of transformative constitutionalism transcending the
nation-state as its framework of reference. From this perspective, the huge
resources absorbed by policing South Africa’s borders and tracing and
deporting undocumented migrants are misdirected and could more

88 See part 3.1.4 of this chapter and part 6 of Chapter 5 (above).

89 See part 6 of Chapter 5 (above).
90 As one scholar has aptly expressed it: ‘Clearly, cross-border migration to South Africa
from the rest of the continent is not going to disappear, no matter how draconian a
policy regime is put in place’: DA McDonald ‘Towards a better understanding of cross-
border migration in Southern Africa’ in DA McDonald (ed) On borders: Perspectives on
international migration in Southern Africa (2000) 1 8. See, in general, parts 2 and 5.1 of
Chapter 6 (above).
91 See the discussion in part 4.4 of Chapter 2 and part 5 of Chapter 6 (above). This
inconsistency is graphically illustrated by the fact that labour rights may in practice be
negated by immigration law; thus, while undocumented migrant workers enjoy
protection against unfair dismissal or discrimination, any attempt to enforce that right
must result in the worker’s deportation.
92 See part 4.3 of Chapter 2 (above).
Constructing an integrated model for the regulation and enforcement of domestic workers’ rights 349

constructively be devoted to building regional consensus and capacity for

the management rather than the prevention of labour migration. This
would involve removing barriers to civic participation by migrant workers,
including migrant domestic workers, and seeking to ensure that legal rights
and social empowerment are extended to all parts of South Africa’s
population.

It is obvious that any moves towards the realisation of such a vision

will call for far-reaching adaptation of the present legal framework and of
the Immigration Act93 in particular. Three inter-related policy objectives
were proposed: establishing a common Southern African labour market,
redistributing resources from ‘border control’ to regulation and integration
of this labour market, and harmonising immigration law with labour
law.94 As with reform of the social security system as suggested in part 3.2
of this chapter (above), a ‘seismic shift’95 of this nature in immigration law
could only be pursued at a national level. Trade unions in sectors affected
by migration, it is suggested, would have a vital interest in such a process.
The existing policy implies a zero-sum game in which the total number of
jobs is fixed and every job performed by a non-South African worker
means a job loss for a South African. In such a climate xenophobia is
incipient and virulent competition can be generated between South
African and non-South African workers by exploiting the vulnerable
position of the former through the payment of sub-market wages and
denial of basic labour rights.

Such divisions are unhealthy from any perspective save that of

complicit employers and highly dangerous from a trade union perspective,
raising the spectre of conflict among workers and a race to the bottom
which immigration officials would be unable to prevent. This is true also
in the domestic sector. An organisation of domestic workers, like other
unions, would need to combat disunity and resist pressures to degenerate
into an ethnic organisation championing the cause of one group of workers
against another. Solidarity between migrants and non-migrants is essential
to maintaining a bargaining position in sectors where the workforce is
drawn from diverse national groups. Ultimately, however, such solidarity
is possible only on the basis of a common vision for migrant and non-
migrant workers which, in turn, will depend on conceptualising an
inclusive alternative based on values of social justice and campaigning for
its implementation.

A first step in this direction, it has been suggested, lies in measures

already taken towards the harmonisation of migration policies; for

93 Act 13 of 2002.
94 See part 5 of Chapter 6 (above). See also n 91 above.
95 J Bhagwati ‘Borders beyond control’ Council on Foreign Relations (reproduced from
Foreign Affairs January/February 2003) http://www.cfr.org/world/borders-beyond-
control/p5356 (accessed 5 May 2013).
350 Chapter 8

example, waiving visa requirements between some SADC member states.

Trade unions in relevant sectors, including an organisation of domestic
workers, would have every interest in supporting such measures and
advocating further steps in this direction. More research and in-depth
consultation with stakeholders in government and in the private sector will
be crucial in identifying such steps and developing a sustainable policy for
utilising the creative energies of workers, and respecting their basic rights,
across national boundaries within sub-Saharan Africa.

4 ‘Here be monsters’

The study began with the theme of domestic work being ‘work like no
other’. It is fitting to also end on that theme, reflecting on what has been
added in the course of the discussion. Perhaps the central message is not
merely for domestic workers to be placed in the same boat as workers in
formal employment. Over the past 30 years this boat, flying the flag of
traditional labour law, has become increasingly unseaworthy as it
ploughed deeper into the stormy and uncharted waters of globalisation.
Many labour law scholars have warned of the monsters lurking in those
waters, albeit with greater precision as to their nature, and the nature of
their depredations, than the cartographers of old. Yet there are signs of the
monsters of austerity and deregulation threatening to tear the boat apart.

Domestic workers have never been in that boat; it would be truer to say
that they have always been adrift in the swells of unregulated markets,
exposed to ‘austerity’ at the discretion of employers, left to sink or swim.
This study does not advocate the feasibility – to change the metaphor – of
including them within the threatened sanctuary of traditional labour law.
Rather, it has argued that all workers may need an alternative model of
regulation and has proposed a model, drawing on the conditions of the
domestic sector, that may be capable of riding out the currents that have
been unleashed. In conclusion, in addition to seeking effective regulation
of the domestic sector, it offers this model as a case study in the context of
the broader discussion of where labour law is going.
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South African and African legislation

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(undated) 10
Basic Conditions of Employment Act 75 of 1997
Basic Conditions of Employment Act Amendment Bill 15 of 2012
Basic Conditions of Employment Bill [B 15-2012] Working
Black Economic Empowerment Act 53 of 2003
Child Care Act 74 of 1993
Children’s Act 38 of 2005
Code of Good Practice on HIV and AIDS and the world of work (GN 451 of 15
June 2012)
Code of Good Practice on the Handling of Sexual Harassment Cases in the
Workplace (GN 1357 of 4 August 2005)
Code of Good Practice: Preparation, Implementation and Monitoring of
Employment Equity Plans (GNR 1394 of 23 November 1999)
Compensation for Occupational Injuries and Diseases Act 130 of 1993
Constitution of the Republic of South Africa, 1996
Criminal Procedure Act 51 of 1977
Domestic Violence Act 116 of 1998
Employment Equity Act 55 of 1998
Employment Services Bill, 2010
Employment Services Bill, 2012
Factories, Machinery and Building Work Act of 1941
Immigration Act 13 of 2002
Income Tax Act 58 of 1962
Inquests Act 58 of 1959
Labour Relations Act 66 of 1995
Machinery and Occupational Safety Act of 1983
Memorandum on the Objects of the Basic Conditions of Employment Amendment
Bill, 2012
National Treasury Retirement fund reform: A discussion paper (December 2004)
Occupational Health and Safety Act 85 of 1993
Older Persons Act 13 of 2006
Pension Funds Act 24 of 1956
Refugees Act 130 of 1998
Sectoral Determination 1
Sectoral Determination 6
Sectoral Determination 7
Sectoral Determination 10
Sectoral Determination 11
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Social Assistance Act 13 of 2004
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Foreign legislation

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1962)
Federal Constitution of Brazil, 1988
Labour Relations Act of 1935 (US) http://www.nlrb.gov/national-labor-relations-
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Law no 11.324 of 2006 (Nova Lei do Empregado Doméstico) (Brazil)
Regulation No 90/2009 of Domestic Workers, Cooks, Gardeners and Similar
Categories Official Gazette No 4989 dated 1 October 2009 (Jordan)
Unorganised Workers’ Social Security Act 33 of 2008 (India) http://labour.nic.in/
upload/uploadfiles/files/ActsandRules/SocitySecurity/TheUnorganised
WorkersSocialSecurityAct2008.pdf

South African case law

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Biggar v City of Johannesburg, Emergency Management Services [2011] 6 BLLR 577
(LC)
Building Bargaining Council (Southern & Eastern Cape) v Melmons Cabinets CC [2001] 3
BLLR 329 (LC)
Dawood & Another v Minister of Home Affairs & Others; Shalabi & Another v Minister of
Home Affairs & Others; Thomas & Another v Minister of Home Affairs & Others 2000
(8) BCLR 837 (CC)
Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC)
Discovery Health Limited v Commission for Conciliation, Mediation and Arbitration &
Others [2008] 7 BLLR 633 (LC)
Engineering Industrial & Mining Workers Union & Another v Starpak (Pty) Ltd (1992) 13
Industrial Law Journal 655 (IC)
Equity Aviation Services (Pty) Ltd v SATAWU & Others [2009] 10 BLLR 933 (LA)
Government of the Republic of South Africa & Others v Grootboom & Others 2000 (11)
BCLR 1169 (CC)
Hoffmann v South African Airways 2000 (11) BCLR 1235 (CC)
Irvin & Johnson Ltd v Trawler & Line Fishing Union & Others [2003] 4 BLLR 379 (LC)
Jaftha v Schoeman & Others; Van Rooyen v Stoltz & Others 2005 (2) SA 140 (CC)
Jooste v Score Supermarket Trading (Pty) Ltd (Minister of Labour intervening) 1999 (2)
BCLR 139 (CC)
Joy Mining Machinery, a Division of Harnischfeger (SA) (Pty) Ltd v National Union of
Mineworkers SA & Others (2002) 23 ILJ 391 (LC)
Kabuika v Minister of Home Affairs 1997 (4) SA 341 (C)
Khosa & Others v Minister of Social Development & Others; Mahlaule & Another v Minister
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Kruger v Carlton Paper of South Africa (Pty) Ltd 2002 (2) SA 335 (SCA)
Kylie v Commission for Conciliation, Mediation and Arbitration & Others [2010] 7 BLLR
705 (LAC)
Lezar v Braitex Pension Fund & Another [2001] 8 BPLR 2380 (PFA)
Maake and Prinsloo (2008) 29 Industrial Law Journal 790 (CCMA)
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Florence de Villiers, former leading member of DWA and SADWU, Cape Town,
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Jenny Moss, community advocate, Kalayaan, London, 17 July 2012
Wendy Pekeur, General Secretary of Sikhula Sonke, 27 September 2010
Hester Stephens, current SADSAWU President, Cape Town, 9 November 2010
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