September 14, 2012

While the legal protection available to domestic workers in South Africa may be far ahead of many other countries, there are important gaps that need to be filled, especially with regards to monitoring and enforcement. 

Liesl Gerntholtz, director of women's rights division

Like many white South Africans of the time, I grew up in a home with a domestic worker who washed the dishes, made our beds, ironed our clothes and cleaned up after us.

Emily, whose surname I never knew, lived in the small servant’s quarters behind our house, and when my mother returned to work when I was a teenager, it was Emily who made our lunch when we got home from school and kept a watchful eye over us. Her own children lived in KwaZulu-Natal and she saw them once a year when she went home over the Christmas holidays.

The advent of democracy has not significantly changed this, except that now domestic workers are not the exclusive preserve of white households. There are approximately one million domestic workers in South Africa, the majority of whom are women.

South Africa has rightfully been praised for the steps it has taken to protect workers’ rights, in its Constitution as well as in its national laws. Workers are entitled to fair working conditions, yearly leave, and protection from violence and unfair discrimination in the workplace. Despite these important advances, domestic workers have not always benefited from strong laws, and many still experience abuse and discrimination in their workplaces.

Over the past decade, Human Rights Watch has documented human-rights violations against domestic workers worldwide. Our research shows that far too many women are subjected to exploitative labour practices. In a review of labour laws from 72 countries, the International Labour Organisation (ILO) found that more than half did not limit the number of hours that a domestic worker could work, while fewer than 40% included a day off. Many countries do not include domestic workers in their existing labour laws – denying them the basic legal protection that many other workers take for granted.

To its credit, South Africa has included domestic workers in the existing laws and policies that protect the rights of workers and to recognise domestic work as a form of employment. In 1993, the provisions of the Basic Conditions of Employment Act were extended to cover domestic workers and to see to it that their working conditions are ­regulated. Domestic workers are protected from sexual harassment by the Labour Relations Act, and they can also benefit from the available social security benefits such as maternity leave benefits and unemployment insurance.

In addition, government has set a minimum wage for domestic workers that is reviewed yearly. But domestic workers remain vulnerable to abuse and exploitation. Recent research by the Community Agency for Social Enquiry suggests that a significant number of employers of domestic workers either do not know what their legal obligations are, or fail to follow the law.

Domestic workers themselves are often unsure of their rights and few know how to enforce them. The labour department, which undertakes periodic inspections to identify recalcitrant employers, confirms that domestic workers remain vulnerable to abuse and unfair labour practices, and that monitoring and enforcement mechanisms must be improved.

On June 16 last year, the ILO adopted a landmark treaty called Decent Work for Domestic Workers. This was the result of years of advocacy and activism by domestic workers, trade unions and human-rights groups.

It changes the way that domestic work is legally recognised and protected. The treaty guarantees domestic workers the same rights as other workers. It contains provisions that protect workers from abuse and violence, as well as provisions on monitoring and enforcement.

Indeed, South Africa played an important leadership role in the run-up to the adoption of the treaty last year. Representing the African countries at the negotiating table, South Africa advocated for a binding treaty that includes strong protection for domestic workers, pointing to its own efforts to protect domestic workers’ labour rights as a good example of effective national regulation.

The prominent role that South Africa played in the negotiations and the treaty’s adoption in Geneva, Switzerland, led many to hope that South Africa would be one of the first countries to become a party to it. While the legal protection available to domestic workers in South Africa may be far ahead of many other countries, there are important gaps that need to be filled, especially with regards to monitoring and enforcement.

Ratification of the treaty would not only provide the impetus to address these gaps, but it would also help consolidate and build on the existing efforts to improve labour standards for domestic workers. As of today, the process of ratification has been slow, and it is not clear when South Africa will be ready to ratify the treaty. The treaty is still being discussed by the National Economic Development and Labour Council, which must approve it before the labour minister can submit it to Parliament.

As spring begins, many of us are starting to think about our December holidays. It would be a wonderful gift for the many domestic workers who will make the trip home for Christmas if a treaty, which could signal better protection of their rights, was signed before then.