INDUSTRY JOURNAL Vol . 8
Most employees employed on estates by homeowners are domestic workers ( as defined in Sectoral Determination 7 : Domestic Workers ).
A Sectoral Determination comprises legislated minimum terms and conditions of employment set for a defined sector and is to be read together with the Basic Conditions of Employment Act and the National Minimum Wage Act ( the latter being utilised to statutorily update each year ’ s annual minimum rate per hour for domestic workers , which includes the definition of a gardener rendering services on private property ).
The current minimum hourly rate is R25.42 per hour .
Another obvious requirement under the above Acts is that of written particulars of employment ( contract of employment ) being compulsory . ( A variable time type contract is a realistic consideration .)
The scope of the Compensation for Occupational Injuries and Diseases Act 1993 was extended to cover domestic workers in November 2020 by a Constitutional Court ruling . Employers of domestic workers must thus register with the Compensation Commissioner and pay the contributions due .
Domestic workers are also covered by the scope of OHSA .
Domestic workers who work for more than 24 hours in a month must be registered under the UIF Act and the necessary contributions made . If the domestic worker loses her job with one of her / his employers , then she / he may claim UIF .
Lastly , all domestic workers are protected against unfair dismissal under the Labour Relations Act . Accordingly , the tenets of substantive ( fair reason ) and procedural ( chance to state a case ) fairness apply .
The law and the employment of foreigners has been dealt with in detail in a previous edition . However , since that edition , the Department of Home Affairs announced ( on 29 March 2023 ) temporary measures in respect of foreign nationals in the light of the backlog being experienced in processing applications for ( a ) waiver applications , and ( b ) outstanding visa applications . A new deadline date of 31 December 2023 was set . The confusion caused was that the ZEP was not mentioned in the aforesaid announcement . Consequently , the next day , a clarification notice was published , which states that the announcement regarding 31 December 2023 does NOT apply to ZEP holders . They will be considered illegal immigrants as of 30 June 2023 , unless they apply for a waiver , or have applied for a visa ( e . g . a work permit or a spousal visa ). ZEP holders may continue to work beyond 30 June 2023 , on condition that they have proof of a Visa Facilitation Service ( VFS ). The VFS applications must be done online on the VFS link .
The link is here : https :// www . vfsglobal . com / dha / southafrica / pdf / Pre-Payment-Solution-Terms-and-Conditions-210815 . pdf
Amendments to the law
The Employment Services Act is proposed to be amended by the Draft National Labour Migration Policy and Employment Services Amendment Bill , published on 28 February 2022 . The Bill and Draft Policy were developed to provide , inter alia , for a legal framework for the regulation of the employment of foreigners . The Department of Employment and Labour will take a more active role in matters relating to the employment of foreigners . Quotas , per sector and occupational category , are proposed to limit the number of foreigners employed in South Africa to protect employment opportunities for South Africans . Small employers ( to be defined ) will be excluded from complying with quotas . A new Chapter 3A will provide for new requirements imposed on employers employing foreign nationals , including determining that there is no South African that has the skills to perform the work and to prepare a skills transfer plan in respect of any position in which a foreign national is employed . The new Section 12D reiterates that an employee who is employed in contravention of the law is entitled to enforce any claim that they may have in terms of any statute ( e . g . LRA , BCEA , UIF , EEA ), collective agreement or contract . The Bill prescribes imprisonment for up to 24 months for certain offences and fines are increased to an amount not exceeding R 100,000.00 .
Employment of Foreigners
There is an ill-conceived view that employers may circumvent employment law when it comes to employing foreigners . Foreign employees , including those who do not have valid working visas , are afforded legal protection from unfair dismissal under the LRA .
Section 213 of the LRA defines an ‘ employee ’ as : a . Any person , excluding an independent contractor , who works for another person or for the state and who receives , or is entitled to receive , remuneration ; and b . Any other person who in any manner assists in carrying on or conducting the business of an employer .
Also , the Constitution of the Republic of South Africa , Act 5 of 2005 , provides in Section 23 ( 1 ) that everyone has the right to fair labour practices and not only citizens .
The law does not declare that a contract of employment concluded without the required permit is void , nor does it provide that a foreigner who accepts work without a valid permit is guilty of an offence . What is prohibited is the act of employing a foreign national in violation of the law . All of the liability is therefore attributed to the employer , and the law does not penalise the action of the foreign person who accepts work or performs work without valid authorisation . It is the illegal employment of a foreigner that is prohibited . The employer is thus not exonerated because the employee failed to take steps to obtain the required visa or work permit .
Therefore , a foreign national whose work permit expires while employed , or who is employed without a relevant work
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