The Constitutional Court case of Mahlangu and Another v Minister of Labour and Others [2020] ZACC 24 (“Mahlangu”) has changed the landscape for the employment of domestic workers in South Africa. The Constitution promises equal enjoyment of all rights and freedoms, protection from undue discrimination and the realisation of human dignity as a fundamental right. Bearing all of this in mind, the Constitutional Court declared that domestic workers should also have the right to access social security in terms of the Compensation for Occupational Injuries and Diseases Act[1] (“COIDA”). As of 10 March 2021, new regulations have been gazetted to bring effect to the Constitutional Court’s decision. This means that all employers of domestic workers need to register and submit the necessary returns to the Compensation Fund in terms of Section 80 of COIDA.  We will hereafter set out what current and future employers of domestic workers need to know about the new regulations.

  1. WHO QUALIFIES AS A “DOMESTIC WORKER” UNDER THE LAW?
  • According to the Basic Conditions of Employment Act[2] (Section 1), a “Domestic Worker”’ is defined as any employee who performs domestic work in the home of their employer. It includes gardeners, those employed as household drivers of motor vehicles and employees who take care of children, the aged, the sick, the frail or the disabled. It is important to note that the definition does not include farm workers.
  • In essence, it means that any individual who works in a household must be registered both with the Unemployment Insurance Fund and the Compensation Fund.
  1. BENEFITS AFFORDED TO DOMESTIC WORKERS
  • Compensation to be afforded to domestic workers for occupational injuries and diseases comprises the same benefits payable to all other injured employees. Categories thereof include:
  • Temporary total disablement (where an employee is booked off for 4 months or more, with a maximum period of 24 months payable);
  • Permanent disablement lump sum;
  • Permanent disablement pension.
  • Compensation payable to the dependants of employees who died as a result of injury on duty or occupational disease includes the following:
  • Funeral expenses;
  • Widow’s lump sum award;
  • Widow’s pension award;
  • Child pension award;
  • Partial dependency award;
  • Wholly dependency award.
  • Compensation for orthotics and rehabilitation includes benefits such as bursaries for youth tertiary studies, rehabilitation to return to work, and cover for assistive devices needed during rehabilitation.
  • Medical benefits include medical claims and claims for chronic medication.

Claims by an employee can be submitted manually to all Department of Labour centres or online at: https://compeasy.labour.gov.za:44328/fiori

  1. EMPLOYEE REGISTRATIONS – WHEN AND HOW
  • INITIAL REGISTRATION
  • Although the Compensation Fund exists to aid employees, it is the employer’s responsibility to register their employees. The decision in Mahlangu applies retrospectively, meaning that employees appointed prior to the judgement must still be registered for compensation. Generally, employers need to register new employees within seven days of the employee’s first day of work. However, this deadline does not apply to the current change. Employers are instead encouraged to register without delay.
  • Registration for new employees entails the following:
  • The following documents must be submitted to RegistrationCF@labour.gov.za or CFCallcentre@labour.gov.za:
  • A completed CF-1E Form (A copy can be found in the Government Gazette No 44250, Notice 106 of 2021, under the heading “Compensation for Occupatonal Injuries and Diseases Act: Private Domestic Employer and Registration Claims Procedure”, on pages 12 – 16;

Online link:  Compensation for Occupational Injuries and Diseases Act: Private Domestic Employer and Registration Claims Procedure

  • A copy of the identification document/passport/work permit of the employer;
  • Proof of the employer’s residential address;
  • A copy of the identification document/passport/work permit of the employee;
  • A copy of the employment contract.
  • Employers can also register online through the Department of Labour’s e-COIDA portal.
  • Future commitments and payment

Once domestic workers have been registered with the Compensation Fund, employers are required to also register and submit a Return of Earnings (ROE) annually.  This can be done on the Department of Employment and Labour’s online services platform.  This system opens between 1 April and 31 May and the earnings declared will be based on the salary of the employee as well as benefits paid during the period in question.

 

  1. CONSEQUENCES OF FAILURE TO REGISTER EMPLOYED DOMESTIC WORKERS WITH THE COMPENSATION FUND

If a domestic worker meets with a workplace accident and it arises that the employer has failed to register the employee with the Compensation Fund or has failed/refused to contribute to the Compensation Fund, the employer will be liable for the injuries and can face fines and other penalties determined by the Director-General. Employers are further open to civil claims if something goes wrong at the place of employment. Employees can bring a case for the cost of medical aid as well as permanent disablement, compensation for death and even pension payments.  Examples of injuries that are likely to occur include injuries resulting from household equipment like irons, vacuum cleaners or gardening equipment.

  1. CONCLUSION

Domestic workers are now afforded compensation under the Compensation for Occupational Injuries and Diseases Act in line with their constitutional rights to equal access to social security (Section 27(1)(c) and (2) of the Constitution). Although this decision is welcomed in the new constitutional dispensation, it does impose an administrative burden on employers. There has yet to be a deadline set for registration, but it is still imperative that employers do not delay in registering their domestic employees with the Compensation Fund, to avoid standing liable for workplace injury and penalties.

The content of this article is to provide general guidance and understanding on the subject matter and should not be construed as providing full legal advice on the topic. Detailed specialist advice should be sought for specific situations.

 

Ashmini Singh

BSoc Science, LLB, Adv Dip in Labour Law

Director

Labour Law Department

Email:  ashmini@sstlaw.co.za

Phone: 012 361 9823                                        Assisted by Kherina Narotam (LLB student UP)

[1] Compensation for Occupational Injuries and Diseases Act No 130 of 1993.

[2] Basic Conditions of Employment Act 75 of 1997 as amended.