Author: Patricia Solomon

Big changes on the cards for South African domestic workers – here’s what you need to know

Alongside the recent announcement of a new minimum wage, South African domestic workers are also set to receive new benefits under the Compensation for Occupational and Diseases Act (COIDA).

The proposed amendments are open to public comment until 18 December, with the changes expected to be officially introduced sometime in 2019.

Speaking to Businesstech, Johan Botes, a partner at Baker Mckenzie, said that the changes bring good news to both domestic employees and employers.

“Domestic employees may benefit from the Compensation Fund if they are injured on duty (i.e. disablement, diseases or death) and may, in addition to compensation, receive reasonable medical aid expenses arising from such injury for a period of two years (or longer in certain situations),” he said.

“Previously, domestic employees would only be able to claim against the Unemployment Insurance Fund and perhaps a civil claim against the employer.

“For employers, the proposed amendments mean that the Compensation Commissioner steps into the shoes of the employer where a domestic employee is injured on duty.

“A registered employer is protected against all civil claims arising from an injury on duty.”

Botes said that under the proposed amendments, an ‘injury on duty’ will include the transportation of a domestic employee by or for the employer to or from the workplace.

Therefore, where an employer entrusts a domestic employee to assist with school trips, grocery shopping and other day-to-day tasks, any injury suffered by the domestic employee whilst carrying out these tasks, despite not being at the workplace, will be deemed to be in the course and scope of employment, he said.

“An accident will also be deemed to be in the course of scope of employment of a domestic employee even if, at the time, the employee was acting (i) contrary to any law that applies to employment, (ii) contrary to any order from the employer, or (ii) without any order but in the interests of or in connection with the business of the employer.”

Do you have to register or pay?

The term ‘domestic employee’ includes a nanny, gardener, housekeeper and domestic driver.

Therefore, a single suburban household may – under the proposed amendments to COIDA – employ a number of employees.

For purposes of COIDA all persons who employ one or more employees must register with the Compensation Fund, said Botes.

“An employer may complete the registration process online and submit the earnings paid to a domestic employee, after which an invoice will be generated with the amount payable to the Compensation Fund.

“The employer is assessed according to the nature of its business operations on the principle that each industry should be responsible for the costs of its accidents.

“Adjustments may therefore be made depending on the accident record. A merit rebate may be given to an employer if their accident record is lower than others in the same industry,” he said.

The anticipated costs for the new industry class described as “Households”, attracts an assessment rate of 0.89 cents per R100 of earnings paid to the employee, Botes said.

“Which is why we believe that this is good news for both employers and domestic employees. For a reasonable R8.90 per R1,000 earning paid to an employee, both parties will get peace of mind that they are protected,” he said.

“It would be a disproportionate risk for any employer not to register with the Compensation Fund.

“Note, however, that the amount paid to the Compensation Fund may not be recovered from the employee,” he said.

He added that further responsibilities arise in the event of an injury on duty.

“In the event of such injury, the employer must submit the required forms within 7 days after an injury, or within 14 days of being notified of the diagnosis of a disease.

“The Commissioner may impose a penalty equal to the full amount of compensation payable plus interest from the date of the accident if an employer fails to report an injury or diagnosis within the stipulated timeframe.”

In general, most instances of non-compliance with the COIDA are now accompanied by such penalty, being the full amount of compensation payable rather than criminal sanctions, he said.

“However, if an employer’s domestic employee is an immigrant employee, without a valid work permit, neither the employer or employee will enjoy the protection under COIDA.

“Further, it is a criminal offence to employ a person(s) who does not comply with the Immigration Act.”

Responsibility to keep your home safe?

Botes said that in these circumstances, the employer’s home is the domestic employee’s workplace.

Therefore, employers must ensure they identify the hazards of their homes/workplaces and take steps to eliminate and mitigate such hazards, or potential hazards, he said.

“Training may need to be given in relation to these hazards and precautionary measures put into place.

“The employer must provide appliances and equipment which are safe and without risks to health. So that decade-old vacuum sporting exposed wires near the electrical plug, would need to be made safe.

“Providing chemicals which should be used in conjunction with masks, gloves or other personal protective equipment (PPE), without providing the necessary PPE may be cause for concern.”

In short, the employer would need to comply with section 8 the Occupational Health and Safety Act, he said.

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