Domestic workers approach top court over Compensation Fund
Constitutional Court ruling could have far-reaching implication for employers’ fund contributions to cover domestic staff
Employers will have to pay Compensation Fund contributions for their domestic workers should the Constitutional Court on Tuesday confirm a lower court order on legislation governing domestic work in SA.
That would add to the legislated national minimum wage of R15.57 per hour that domestic workers are entitled to as well as to the Unemployment Insurance Fund contributions that employers already pay for their domestic workers.
On Tuesday, SA’s highest court will hear an application for confirmation of orders by the North Gauteng High Court in May and October 2019. This follows after applicant Sylvia Mahlangu successfully challenged the exclusion of domestic workers from the Occupational Injuries and Diseases Act 130 of 1993 at the high court.
The court declared a section of the act constitutionally invalid to the extent that it excludes domestic workers employed in private households from the definition of “employee”.
In October, the same court further ruled that the declaration of invalidity must be applied retrospectively to provide relief to domestic workers who were injured or died at work before the granting of the order.
Sylvia is the surviving daughter of deceased domestic worker Maria Badanile Mahlangu, who worked for the De Clercq family for 22 years.
On March 31 2012, the deceased drowned in her employer’s pool during the execution of her duties. The De Clercqs offered the bereaved family less than R5,000, prompting Sylvia to approach the department of employment & labour to lodge a grievance.
However, the department advised her that she was not entitled to any compensation as a result of her mother’s death, leading to her mounting a legal challenge on the constitutionality of the act.
On behalf of Sylvia and the SA Domestic Service and Allied Workers Union (Sadsawu), the Socio-Economic Rights Institute of SA (SERI) approached the top court to confirm the two orders granted by the North Gauteng High Court in 2019.
“If these two orders are confirmed by the Constitutional Court, it will have significant implications for employers of domestic workers,” the SERI said on Monday.
“Under terms prescribed by the department of employment & labour, employers would have to contribute a monthly amount to the Compensation Fund for their domestic employees from a specified date. In the event of injuries, diseases or death arising out of and in the course of employment, statutory benefits will be paid from the fund to employees or dependants of deceased employees.”
The SERI said employers who have registered their employees will be protected against civil claims, and employees covered by the act are prevented from suing their employers for damages in terms of common law.
“Domestic workers and dependants who experienced work-related injuries, diseases or death before the confirmation of the two orders, will be able to submit claims to the Compensation Fund even though their employers were precluded from contributing to the fund.”
The SERI said it was their hope that this “important issue reaching the highest court in SA, signals a turning point for enforcement of domestic worker laws and policies”.
Pinky Mashiane, president of the United Domestic Workers of SA, which supports Sadsawu on the matter, said: “We are hoping for the Concourt to rule in our favour as the high court has already done. We are going there [Concourt] victorious on Tuesday.”
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