South African Domestic Service & Allied Workers Union
Submission on the Unemployment Insurance Fund Bill
March 16, 2001
It is our submission that the continued exclusion of domestic workers from the Unemployment Insurance Fund Bill demonstrates unconstitutional legislation and open discrimination against women. We highlight the following issues which we find most problematic in relation to the current UIF Bill.
Request for Further Investigation on Domestic Workers and the UIF
We are extremely concerned by the suggestion of another task team investigation on domestic workers and the UIF legislation and find this use of government resources completely inappropriate, given the two previous and comprehensive research reports on the same issue. In 1993, the Limbrick Report was presented to the Department of Manpower with strong recommendations for the full inclusion of domestic workers in the UIF and a detailed account of modalities for inclusion. Similarly, another Task Team employed in 1996 completed the "Task Team Report" which fully endorsed the recommendations of the Limbrick Report on full inclusion of domestic workers in UIF legislation. This Task Team also found near unanimity on the question of extending UIF coverage to domestic workers.
In subsequent processes related to this issue (in 1997 and March of 2000), investigation periods of 18 months were deemed most appropriate by government structures in order to deal with this issue of domestic workers’ inclusion in the UIF Bill. The current bill again requests a third period of 18 months to investigate the situation. We are severely concerned with this continual delay which leaves domestic workers still unprotected by UIF benefits. We ask, "What more can you investigate?" after eight years of research on this same issue and the substantial resources already invested in two comprehensive research reports. The continued delay of any concrete action on this issue leads us to question the actual level of government commitment to the case of domestic workers.
Exclusion as Open Discrimination
We view the exclusion of domestic workers in the UIF Bill as open discrimination on the basis of gender, race and class. The Constitution guarantees that "everyone the right to have access to social security…" (Section 27). The UIF Bill provisions for unemployment, sickness, maternity, adoption, and dependant benefits fall clearly within the framework of social security. By denying domestic workers inclusion in this constitutional right, the Bill further illustrates the inability to access basic human rights among the most vulnerable sector of the working population.
Extensive research has already demonstrated that domestic workers in South Africa are predominantly poor black women. By excluding these workers from social security benefits, the UIF Bill serves to even further discriminate against this most vulnerable sector of the population. Therefore this discrimination is characterised by a strong race and gender dimension, which systematically disadvantages poor, mainly black women. The devaluing of this profession serves to discriminate against those most in need of employment legislative protection on not only one but three specific levels including gender, race, and poverty.
This discrimination directly violates The Equality Act which asserts that the State may not "unfairly discriminate against any person or group of persons" (s.6). Furthermore, this act specifically prohibits discrimination on the grounds of race and gender (ss 7 and 8). It is estimated that domestic workers comprise over 1 million workers in South Africa. How can the exclusion of such a wide section of the population in access to basic labour legislation not be deemed discriminatory when that population is composed of women, specifically poor black women? We submit that it is this population that is most in need of UIF benefits. Without inclusion of this substantial sector, the overarching goal of this bill, which seeks expanded coverage, especially to poor populations cannot be realised. We find it highly problematic that the UIF bill seeks to include the poor in coverage while overlooking the poorest sector of employed women in terms of access to normal legislation and basic human rights.
Disparity between Constitutional Rights and Lived Realities
In our work with thousands of domestic workers, we see enormous disparities between constitutional rights and the actual experiences of domestic workers. In terms of labour protection, although domestic workers are now included in the Basic Conditions of Employment Act, the majority of workers we deal with have no work contract, are paid meagre salaries, remain isolated in their work, face continual threats of unfair retrenchment (particularly during pregnancies), are often subject to various forms of abuse, and frequently express that in their own work lives, they have realised very few of the benefits of the democratic South Africa. This reality demonstrates that although structures may be in place to protect disadvantaged populations, few domestic workers have been able to access these human rights. This disparity is even further identified in the exclusion of domestic workers in the UIF benefits. Access to labour protection and benefits through the UIF would provide an essential means by which domestic workers could finally realise their constitutional and human rights through protection in the work place. Access to UIF benefits would also provide a short term safety net for these disadvantaged populations and foster their ability to move out of the lowest paid sector of the economy.
Government Processes Disadvantage Domestic Workers
We find the composition of those involved in making decisions which affect the single largest sector of employed women to be highly problematic. Domestic workers remain completely excluded from any aspect of the legislation process. This process we find undemocratic and much more favourable to employers than workers.
In several government processes, it is highly evident that domestic workers are continually overlooked. Historically, this group was also excluded from the Basic Conditions of Employment as well as the UIF Bill. Similarly, the government has produced little to no statistics on domestic work and employment rates in private households, even though this profession remains the largest occupational sector for women. The most recent statistics from the Central Statistics Service of 1991, indicated that black women comprise 89% of all domestic workers and 8.4% are coloured females. This survey also indicated that 26% of all female workers at that time described themselves as domestic workers. It would appear that these figures alone merit the essential consideration of domestic workers, particularly in relation to labour legislation that affects women. Our experience, however, indicates that this group is often not consulted and continually overlooked as a priority in decision making processes.
Similarly, findings based research that has been conducted is often not shared with domestic workers, the very population under investigation. We perceive a limitation in terms of the sharing of information in relation to our own situation, which further disadvantages domestic workers through lack of access to key information.
Exclusion from UIF Fails to Address Low Rates of Employer Compliance
We recognise that although the BCOE Act mandates that employers of domestic workers formalise the work process by creating a contract, offering specific benefits and paying into pension funds, very few employers in our experience actually follow the law in these regards. Because of the high poverty rates, many employers perceive that domestic workers can easily be replaced by other women, desperate for employment. The legacy of apartheid in this country has also created a cultural mentality among many employers that is characterised by strong paternalism toward domestic workers and an inability to conceptualise this type of work as a formal labour relationship. We find that the "Master and Servant" mentality remains prevalent throughout this country in relation to the employment of domestic workers.
Because the Department of Labour has been unable to monitor domestic work processes in the home, employers remain free to dictate the conditions and nature of domestic work in their own private homes.
In order to change this privatised culture around domestic work, we believe that legislation must facilitate the shift among employers who currently are not held accountable to look at the domestic workers they employ as eligible to protection by all aspects of human rights upheld by the constitution.
By not including domestic workers in the UIF Bill, the government is sending a strong message that serves to perpetuate the informal nature of domestic work in this country. It also provides a further loophole, whereby employers are not forced to shift their thinking and enter into formalised structures of employment. The private nature of domestic work has been seen as one of the many complications regarding the inclusion of domestic workers in UIF legislation. However, the continued exclusion of domestic workers allows for these relationships to remain private and informal, and does nothing to challenge the reality of the current prevalence of labour legislation violation among employers.
"Administrative" Complications not Enough Reason for Exclusion
The dominant justification of the exclusion of domestic workers
is based on the perception that the UIF administration of this sector of the employed population would be far too challenging. We reject this reasoning as grounds to discriminate against the most vulnerable sector of the working women’s population through their exclusion from UIF benefits. The Limbrick report of 1993 offers several options in terms of processes to administer UIF benefits for domestic workers, along with a set plan for inclusion of all workers within three years after implementation. These suggestions were further endorsed by the 1995 Task Team. We believe it is the responsibility of the government to oversee this process, rather than that of the employer. As we have seen regarding lack of compliance on BCOE conditions, without government intervention and monitoring, UIF benefits will also not be formalised and upheld by employers. Domestic workers need the support of the government in holding employers accountable for the protection of employees under constitutional rights. Excluding this group from basic employment legislation serves only to further sanction the lack of compliance and low levels of accountability toward employers.
We ask, in the current system of power and privilege, "Who has the responsibility to change?" Is a woman who supports a family and accepts work as a domestic worker without a contract really in a strong bargaining position? We submit that legislation around domestic work must force employers to shift their thinking regarding the institution of paid domestic labour. We are not satisfied with the reasoning behind exclusion that points to administration as the primary reason, without addressing these social imbalances and the need to redress past inequities of the apartheid era through protective legislation.
International Comparisons are Unnecessary and a Further Delay
Part of the rationale behind the request for another 18 month investigation period on behalf of the Portfolio Committee on Labour was based in a need to look at ILO standards and investigate ways in which other countries are dealing with administration. We find this process unnecessary because there is no country with the particular history where the governance under an apartheid regime served to divide the population racially and create the highest prevalence of domestic workers as part of massive social inequality. Domestic work in South Africa has a very particular nature, linked closely with the racialised and paternalistic nature of the apartheid era. Because of this, as deemed necessary in Guiding Principles of the Equality Act, the current governance has the distinct responsibility of redressing past imbalances, particularly from a racial perspective. No other country can provide models for this dispensation of rights.
While other countries administer benefits similar to the UIF social security benefit, it is essential to realise that in most other national contexts, domestic work is performed by women who are primarily immigrants (Canada, the United States, Western Europe, Hong Kong, Malaysia). In many cases these workers do not have access to employment protections because of their often illegal status. Therefore, little comparative value can be added by investigating other countries. We believe that the cost of this delay is far greater than the benefits which would be realised in another investigative procedure.
Lastly, the 1996 Task Team report provides in great detail comparative statistics with a substantially diverse sample of other nations and their related processes around domestic workers. Given the extensive nature of this report, we see no reason to invest further government resources on comparative research. Rather, we submit that information is comprehensive and that further investigations in this area will severely delay access to rights among the most vulnerable portion of the population.
We ask for the immediate inclusion of domestic workers in the UIF Bill and deem their exclusion open discrimination and completely unconstitutional. Therefore, in light of all these concerns, we are calling for the deletion of items 3(1)e and 3(2) of the current UIF Bill.
We have collaborated with the following organisations, who support our case on this issue:
Commission for Gender Equality
Human Rights Committee
COSATU Western Cape Regional Office
South African Council of Churches
Catholics Bishops Conference
Lastly, we ask that our perspective be given particular attention because we are the organisation that most directly deals with domestic workers themselves. We continue to strive for the full protection of this vulnerable sector of the population and we appeal for their full inclusion in all labour legislation.
SADSAWU General Secretary
The University of Cape Town; African Gender Institute
The American University