Jonathan Grossman 28 October 1997.

In this submission I want to highlight specific aspects of the Bill which I believe fail fundamentally to address the vulnerability of domestic workers. My comments will focus on "variation downward", "flexibility" or "regulated flexibility" because it is primarily through its acceptance of such variation that the Bill wastes an opportunity to fundamentally address the vulnerability of domestic (and other) workers.

The most reliable statistics suggest that there are between 1 and 2 million domestic workers. There c an be no serious doubt that they have suffered some of the worst working conditions, treatment by employers and lowest wages. This situation is a reflection of historical vulnerability and a particular form of variation downwards. As matters stand at the moment:

a culture of human rights is being developed which prioritises the rights of propertyowners over the rights of workers (access to paid accommodation arbitrarily controlled by the landlord, not the paying tenant,
exemption from disclosure, denial of union access to workplaces, denial of access for Labour Inspectors);

*a better life for some continues to be provided, in part, through the services provided by the labour of domestic workers, unprotected by meaningful minimum wage legislation;

the equality and rights of women are constitutionally entrenched but effectively undermined and denigrated by the exclusion of the single biggest sector of employed women from UIF and paid maternity leave.

Press reports suggest that both the Minister of Labour and officials from his department have invoked the plight of domestic workers amongst others as particular reasons for supporting this Bill. The draft of the bill does not single out domestic workers for special protection and redress, but instead provides particular exemptions serving employers. Unfortunately, the Bill, in bowing to the currently dominant ideology of the market reproduces rather than changes or challenges important parts of the vulnerability of domestic workers.

Domestic workers are forced into a trap of vulnerability with at least three major aspects:
vulnerability on the labour market (there are people whose desperation for work is so great that they can be forced to accept, at least some of the time, almost any conditions; employers are able to use both the threat and reality of the availability of desperate workers in any "negotiations");

vulnerability in the law (this includes the new Compensation Act, the new LRA, the 1994 BCOE, the absence of a legislated minimum wage and the exclusion of domestic workers from UIF);

vulnerability in civil society and currently dominant patriarchal and marketinfested thinking ("just domestic workers"; " non-productive workers"; "women's work"; "unskilled work" etc).

Unfortunately, as is stands, the BCOE wastes the opportunity to deal decisively with that situation.

It continues aspects of the inequality of domestic workers in relation to many other workers;

it sanctions a system of variation downwards which will inevitably entrench aspects of the vulnerability of domestic workers.

It entrenches the notion that domestic workers must be treated differently because of the private property rights of employers, thereby making the rights of workers secondary to the rights of property owners.

It provides the least protection from the market (employers) at precisely the points where the most protection is needed - the individualised, isolated domestic worker who must now "negotiate variation".

It reduces political and moral decisions to economics, in a process in which domestic workers pay the price. ("wait for research"; provide services cheaply because the government is not sufficiently funded to provide them).

Historically there have been three ways in which the vulnerability of domestic workers has been challenged and changed:
through mass struggle and popular organisations of resistance;
through changes sometimes forced and since 1994 sometimes willingly made through the law;
through the goodwill of individual employers.
The goodwill of individual employers is transparently a useless basis on which to expect widespread and meaningful change in the lives of domestic workers. Left to themselves, many employers have used apartheid legislation (the Pass Laws) to follow apartheid "morality" which sanctioned the employment of domestic workers under any conditions which employers could force on them. This was true in rich and poor areas, urban and rural areas. There is no shortage of examples of "tyranny in the backyard" even amongst employers who were elsewhere being forced into apparently progressive positions in other areas of economic life. The same "morality" is true of "the market". Left to themselves and their "goodwill", employers in general have created precisely the situation which has to be changed. The domestic labour sector of economic life has in fact been a perfect example of the flexibility which employers are insisting on. Left unchecked, unchallenged and uncontrolled, conditions for domestic workers will continue to reproduce exactly what needs to be changed.

Domestic workers are most vulnerable at the point of employment where the employer is free to decide whether to employ her and under what terms and conditions. Only someone choosing to be blind to reality can believe that this is really a contract determined on a "level playing field" (or for that matter that we are talking about something which resembles a game). The domestic worker is almost always:
desperate for work;
with no real alternative/s;
isolated;- with limited even formal legal protection;
without powerful organisation or meaningful recourse to industrial action;
and hence with no real "bargaining power".

The responsibility is on progressive law-makers to interfere with that situation. If it is to change, it has to be changed. This demands regulation that is:
directed at known and repeated areas of abuse;
-simple, straightforward, clear, unequivocal and standard.
Both the principle of variation downwards/flexibility and the areas which it currently would cover fail on both counts. It denies the domestic worker legal protection at the point at which she needs it most. Exactly where the worker is most vulnerable and isolated, simple, clear, unequivocal straightforward protection is replaced with the need to "negotiate".

Even if the worker knows the law, invoking it when it is adaptable and variable is simply likely to mean that the employer looks for (or threatens to look for) someone else who is easier to control (not so "clever" or "cheeky"). The inevitable consequence is obvious: variation downwards opens the door for employers to impose intolerable conditions against unprotected workers and provides them with an instrument of control to discriminate against workers actually seeking to negotiate for their rights. This is not different to what happens today already: but we are meant to be enacting legislation which changes what happens today already. In addition, the legislation as it stands will actually give what happens already the sanction of legitimacy of the democratically elected parliament. Variation downwards simply reproduces and entrenches the vulnerability of domestic workers. Whatever issues it relates to, it is inevitably in direct conflict with attempts to break the vulnerability of domestic workers and provide serious and real legal protection.

The situation will not be changed by varying what can be varied. It will only be effectively dealt with by removing the principle of variation downwards.

There are several other areas in which specific steps can be taken to deal with vulnerability more meaningfully:
a binding commitment that there will be a legislated minimum wage for domestic workers and a binding implementation schedule with declared and short timeframes;
a binding commitment that domestic workers will be covered by UIF and thereby paid maternity leave and compensation and a binding implementation schedule with declared and short timeframes;
regulations covering recurring areas of abuse.

These include:
arbitrary and uncertain decisions and witholding information by employers(eg in relation to pensions);
payment in kind;
abuse of privacy and other rights in backyard accommodation; abuse of rest time and time-off.
As a minimum, full records should be required (as is the case with other employers); payment in kind should be quantified and contractually agreed; rights of access and use of rented property (the room in the backyard) including privacy and visits by family and friends must be legally entrenched and contractually specific; all over-time must be quantified, recorded, and paid for as such.
additionally a system of pro rata and transferable benefits has to be developed.
rights of entry to the workplace of domestic workers for Labour Inspectors must be the same as any other workplace.

There can be little doubt that even attempts to secure the limited protection of the law as it stands is going, to place some domestic workers under threat. Protection against victimisation must be strengthened by outlawing and criminalising attempts to sidestep the law through misinformation, threats and constructive dismissal.

There is a powerful tendency to seek to reduce political and moral decisions to matters of arithmetic cost and to promote aspects of the status quo by doing so since change may cost money. The cost in human, social, economic and moral terms of the historical abuse of domestic workers can never be quantified. Neither can it be adequately monetarilycompensated for. A future in which that sort of abuse is ended and impossible is the closest we are going to be able to get. It means that if there is an economic price to either the taxpayer, or the government, it will have to be paid. In fact, most of the measures suggested have no necessary price. Even a legislated minimum wage need not automatically cost employers more - it can be translated into buying less service (days off, part-time work). It is a principle of economics that poor people across the world know - if you don't have enough money to buy a whole loaf of bread, you buy a half.

This relates to another important part of protective legislation. It will never succeed if it is decided and dealt with purely technically. Law-making which is meant to serve the interests of vulnerable workers has to go beyond the statute and words on paper. They key test is: will it meaningfully change and improve the lived experience of ordinary workers? However inadequate some recent changes in the LRA, there are some real formal improvements, -particularly in the area of protection against unfair dismissal. But there is already growing evidence that these are repeatedly and systematically undermined by a combination of:
lack of information and misinformation;
inadequacy of enforcement mechanisms and agencies
More broadly, domestic workers continue to face:
a dominant culture of denigrating women workers and domestic works;
a lack of real alternative so that hundreds of thousands and millions of women are forced to look towards domestic work;
inadequate and insufficiently funded social services so that the burden and price of providing necessary services falls on women and the institution of cheap or unpaid domestic work.

Law which is seriously designed to protect domestic workers would have to take account of and deal with all of these factors. It is a sector riddled with transparent hypocrisy and double standards. Some of the same employers who are most shrill about "law and order" systematically ignore even existing inadequate protective legislation when it comes to their own backyards. Domestic workers are denigrated as unskilled and doing work which needs no responsibility by some of the same employers who give domestic workers responsibility daily for caring for their most treasured possessions, their children and their homes. Domestic workers are widely denigrated, their work trivialised - when in fact they provide services which are useful and necessary. In the short term, at least a majority of members on this Committee are well-placed to try to build respect for the necessary and useful work which domestic workers do; to try to promote a culture of human rights which prioritises the rights of "the poorest of the poor"; and to promote a culture of law and order in which the crimes in the backyards and the kitchens (as in other workplaces and employment relationships) are dealt with as precisely that - crimes.

Much of domestic work is unpaid. In the comments above, I have focused on the paid wage-labour component of domestic work.

The submission draws on participatory research conducted while employed as a Lecturer in the Sociology Department, UCT and organisational work with domestic workers since 1988 through the former South African Domestic Workers Union (SADWU), the former Transport and General Workers Union Aid Service, Masabelane (A Labour History and Worker Education Project), Masipathisane Branch of the ANC (more than 95% of whose membership are "backyard workers") and the new National Union of Domestic Workers (NADWU - formed by former SADWU members, officials and activists). Over the last year, much of that research has been directed towards a submission to the September Commission. Most recently it has included a series of workshops run by Masabelane with NADWU which have focused on the new BCOE Bill and workers views about it.