Sweeping changes in the domestic sector in South Africa: Inclusion of domestic workers under COIDA
When the tide of democracy and constitutionalism swept through labour legislation in South Africa from the early ‘90s onwards, domestic workers, for the first time, gained access to important labour rights. However, they remained excluded from two important statutes, the Unemployment Insurance Act, 2001 (the “UI Act”) and the Compensation for Occupational Injuries and Diseases Act, 1993 (“COIDA”). The exclusion from the UI Act was remedied in 2003, but the exclusion from COIDA remained. This meant that domestic workers were not entitled to compensation for disablement caused by occupational injuries or diseases sustained or contracted by them in the course of their employment and dependants of domestic workers who died as a result of such injuries and diseases were also not entitled to compensation in terms of COIDA.
In proceedings in the North Gauteng Division of the High Court, an application was brought seeking to declare the provisions of COIDA that exclude domestic workers from its ambit unconstitutional.
On 23 May 2019, Judge Molopa granted an order declaring section1(xix)(v) of COIDA unconstitutional and invalid to the extent that it excludes domestic workers employed in private households from the definition of “employee” and further directed that the section be severed from COIDA.
A declaration of constitutional invalidity issued by the High Court has no force and effect until it is confirmed by the Constitutional Court. Effectively, pending the confirmation of the High Court’s order by the Constitutional Court, or pending any interim order granted by the High Court, the exclusion of domestic workers from COIDA remains in force.
The COIDA Amendment Bill does not define which workers fall within the term “domestic worker”. However, domestic workers are defined in the National Minimum Wage Act, 2013, as any worker who performs domestic work in a private household and who receives or is entitled to receive a wage and includes a gardener, a person employed by a household as a driver of a vehicle, a person who takes care of children, the aged, the sick, the frail or the disabled, and also includes domestic workers employed or supplied by employment services. This definition may serve as guidance in interpreting the term “domestic worker” when applying and administering the amended COIDA.
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Feel free to contact Luttig Badenhorst Fourie (LBF) Attorneys for more information.