Domestic workers will have cover for illness and death in the workplace when the compensation act is amended. Picture: THE HERALD
Domestic workers will have cover for illness and death in the workplace when the compensation act is amended. Picture: THE HERALD

The government has dragged its feet for many years on the issue of providing domestic workers with compensation cover for injuries and diseases suffered at work and it was probably only the threat of a looming Constitutional Court judgment on the matter that galvanised it into action.

The department of employment & labour has been working on amendments to the Compensation for Occupational Injuries and Diseases Amendment Act (Coida) since May 2016, but these did not encompass the inclusion of domestic workers. Neither did the version of the draft bill approved by the state law advisers in November 2019 include such a clause.

So it seems clear that it was only in anticipation of a judgment by the highest court in the land declaring the exclusion of domestic workers unconstitutional that the department proposed to cabinet to amend the act to include domestic workers in the definition of employees who qualify for benefits from the Compensation Fund. The cabinet’s decision last week to do so has been heartily welcomed by labour unions, which have been lobbying for the measure for years. Significantly, the department did not oppose the application to the Constitutional Court.

The case the court considered last week highlights the tragedy of domestic workers not having compensation cover. It was brought on behalf of Sylvia Mahlangu, the daughter of Maria Badanile Mahlangu, a domestic worker in Gauteng who slipped off a ladder at work, fell into a swimming pool and drowned in March 2012. Maria Mahlangu had worked for her employers for 22 years but her family was offered less than R5,000 by them as compensation. This prompted Sylvia Mahlangu to lodge a grievance with the department of employment & labour but she was advised she was not entitled to any compensation.

Supported by the SA Domestic Service and Allied Workers Union and the Socio-Economic Rights Institute of SA (Seri), Sylvia Mahlangu successfully challenged the exclusion of domestic workers from the legislation at the Pretoria high court, and Seri approached the Constitutional Court on their behalf to confirm the two orders granted by the high court in 2019. These orders declared a section of the act constitutionally invalid to the extent that it excluded domestic workers employed in private households from the definition of “employee” and declared that the invalidity must be applied retrospectively to provide relief to domestic workers who were injured or died at work before the granting of the order.

The Constitutional Court judges grappled with the question of retrospectivity, and rightfully so, because it would be an administrative nightmare to deal with claims dating back many years. The government is generally opposed to retrospective provisions in laws.

Not that the Compensation Fund, which pays the benefits to injured and sick workers, lacks the financial means to pay them as it is sitting on a cash pile of about R60bn. The more pressing problem is that the parlous state of administration of the fund might make it unable to cope with such a daunting task. Already, medical practitioners and other stakeholders are up in arms over the non-payment of their relatively recent claims by the fund.

Many details of the proposed law still have to be worked out and embodied in regulations, such as whether employers of domestic workers will have to pay a levy to the Compensation Fund, and if so, how much. It could be that the labour department decides that the administrative burden of collecting small amounts from many employers is just not worth it, especially given the administrative problems of the fund.

The claims for compensation by domestic workers are likely to be small in both number and quantum, but the policy decision taken by cabinet is important in principle in that it gives due recognition to the right of domestic workers to enjoy the same rights extended by law to other workers. Whatever one’s views of the appropriateness of a national minimum wage in a situation of mass unemployment, the inclusion of domestic and farm workers within the national minimum wage regime provided them with a necessary form of protection and recognition. April 2003 marked another victory for domestic workers, as it was from this date that they were included under the Unemployment Insurance Fund (UIF).

The government is often tardy in implementing Constitutional Court judgments declaring pieces of legislation unconstitutional. In this case — should the court rule that the exclusion of domestic workers from compensation cover is indeed unconstitutional — the government would have been ahead of the game, which is to be commended, though it shouldn’t have needed a court process to force it to act.  

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