Introduction:
According to the International Labour Organization, a general assessment of law and practice on domestic work across the world is that it is “undervalued, underpaid, unprotected and poorly regulated” in spite of the contributions that domestic workers make to the care and welfare of millions of households (ILO, 2010). In many regions, Africa inclusive, domestic workers very often lack recognition as real workers, and constitute one of the most vulnerable categories of workers. Only about ten per cent of them are covered by labour legislation to the same extent as other workers, while more than 25 per cent are completely excluded. More than 80 per cent of workers in the sector are women, many of them migrants and members of disadvantaged communities.
Consequently, domestic work is often characterized by abuses such as long hours of arduous work without rest and unfair pay practices such as delayed or altogether unpaid wages. Such abusive conditions are widespread and have particularly serious consequences for domestic workers and their families.
One of the reasons is the similarity between paid domestic work and the unpaid care work done by women in their own homes in the form of housework and caring for other household members which often leads employers of domestic work and governments alike to overlook the importance of ensuring decent work for domestic workers. These factors contribute to a situation where the work of domestic workers is undervalued in monetary terms, as reflected in the generally low wages received and is further under-valued in societal terms in that it’s economic and social value is not adequately recognized by governments, citizens and others (ILO, 2011).
The situation above cuts across the global divide as domestic Workers world over are faced with similar challenges of under-valued wages for the work they perform, and in Africa, this is further engendered by prevalent surplus labour and low income earnings among potential employers that compound the under valuation of wages for domestic work, when it can be contracted. However, following heightened discourse on decent work for domestic workers, which among others saw the adoption of the ILO Convention 189, many African governments have begun to evaluate the plight of domestic workers with renewed lenses, recognising its impact in the social reproduction of society and consequently working towards legislative protection for this largely unprotected sector of workers, hidden away in private homes.
This paper gives an epigrammatic review of domestic workers minimum wage structures and labour codes in six such African countries, namely Ghana, Kenya, South Africa, Tanzania, Zambia and Zimbabwe aimed at assessing areas of similarities in wage structures as well as variations thereof. These findings can be useful beyond the six countries to assist in developing and or improving minimum wage structures and labour codes for domestic workers aimed at creating value for their work and wages as well as fostering implementation of ILO’s C189 and decent work for domestic workers.
Country Minimum Wage Structures:
Domestic workers legislative protection remains a critical need for the enhancement of decent work for the sector; however in many countries, provisions to protect this sector of workers remains loosely embedded in other employment or industrial relations legislation which perpetuates the “hidden” nature of domestic work and in turn impedes effective legislative compliance. In the six countries under review, namely Ghana, Kenya, South Africa, Tanzania, Zimbabwe and Zambia, domestic workers conditions of service are covered under varying pieces of non- sector specific legislative with the exception of South Africa, which has a specific piece of legislation – the Sectorial Determination 7 – that contains working conditions and wages for domestic workers.
For the other countries such as Zambia and Zimbabwe domestic workers conditions of service are enshrined in the national minimum wage Acts under separate Statutory Instruments; which are government or executive orders of subordinate legislation. In Kenya and Ghana, conditions of service for domestic workers are not covered by specific legislation but fall within varying legislative provisions. The situation in Tanzania is no different from that of Ghana and Kenya wherein domestic workers conditions of employment are not specifically covered by targeted legislation but fall under other employment related legislation.
In more specific details, domestic workers conditions of service prevalent in the respective countries compare as such:
South Africa: The post-apartheid South African state had launched one of the most extensive efforts anywhere in the world to protect domestic workers, giving them for the first time in South African history a political status, and the right to organise into trade unions. In the apartheid era, domestic workers in South Africa were not protected by labour legislation and were “situated in a legal vacuum,” as a result. There were no laws stipulating a minimum wage, hours of work or other conditions of service. They lacked access to benefits such as disability and unemployment insurance, maternity benefits or paid sick leave. Moreover, they were also vulnerable to instant dismissal by their employers who often failed to observe common law provisions.
However, the implementation in 2002 of Sectoral Determination 7, establishing national minimum wages amongst other legislative interventions, cushioned some of these challenges even though domestic workers themselves felt things were better off before the sectoral determination was implemented. Domestic Workers Minimum wages are calculated based on the specific locality / area in which the domestic worker operates. The applicable minimum wages are accordingly revised annually.
Zimbabwe: Domestic work in Zimbabwe is characterised by gross exploitation which is not only in the form of wages but extends to abuse by politicians who use the domestic workers to campaign for votes yet once voted in power the government is not responsive to the needs of domestic workers and are not interested in the union. Also most middle class black employers of domestic workers have adopted the former colonial masters’ of exploiting domestic workers and treating them like modern day slaves. For the domestic workers in Zimbabwe, conditions of service are contained in Statutory Instrument (SI) 377 of 1992: Labour Relations (Domestic Workers) Employment Regulations and other provisions on the employment of domestic workers found in the Labour Act: Chapter 28:01 as well as Statutory Instrument 15 of 2006: Labour (National Employment Code of Conduct) Regulations (IDWN:2013).
Zambia: Many domestic workers in Zambia are underpaid, fired without notice and rarely receive days off or paid leave. While the labour law stipulates that domestic workers are entitled to rights such as leave, social security and separation pay, in practice these rights are rarely respected and enforced. However, due to the invisibility of domestic work and low levels of literacy among workers there are rampant cases of non-compliance by employers. The determination of the wage rate for domestic workers is an agenda item for the Tripartite Consultative Labour Council whose discussions began in 2004 and concluded in 2010 with the issuance of the Minimum Wages and Conditions of Employment (Domestic Workers). Thus, Domestic workers in Zambia have their conditions of service contained in the Minimum Wages and Conditions of Employment Act 276 of the Laws of Zambia through which Statutory Instrument no.3 of 2011, that is, the Minimum Wages and Conditions of Employment (Domestic Workers), Order 2011 was released.
However, the issue of compliance continues to be a daunting task as many employers persistently resist this wage imposition as many view it. The domestic workers themselves too have been known to forego demands for this wage in preference to retaining or safeguarding their employment given the country’s context of high unemployment which further engenders extreme job insecurity.
Kenya: Kenya has an estimated 1.8 million domestic workers out of a population of 11 million employed in the informal sector. Kenya’s ambitious socio-economic restructuring dubbed “Vision 2030” which is aiming to make the country a middle income economy by the year 2030 will among others focus on the maximum utilization of existing human resource, both the formal and informal sectors with increased attention to the growing informal sector. This in turn gives hope for the domestic workers in Kenya given the on-going restructuring of the economy coupled by the shift in attention towards the informal sector. Additionally, the revision of the country’s legislation in 2010 was a positive indicator, specifically Article 42 of Kenya’s new Constitution, which gives all workers the right to join a Trade Union, and Article 36, which gives the right to Freedom of Association, both of which play a significant role in the advancement of decent work and implicitly decent wages for domestic workers.
The important rights for domestic workers follow the institution of five core labour laws in 2007: the Employment Act 2007, the Labour Relations Act 2007, the Occupational Health and Safety Act 2007, the Labour Institutions Act 2007, and the Work Injury Benefits Act 2007. In addition, the Presidential Circular no. 1 in 2008 gave the Ministry of Labour the mandate for enforcing minimum wage legislation through such means like the Labour Inspectorate Services. This elaborate system of fixing minimum wages means that every employer is expected to observe the set minimum wage.
Ghana: The situation is very similar in Ghana were domestic workers conditions of work and minimum wages are embedded in the Labour Act 651 which seeks to ensure that all workers are treated fairly and remunerated accordingly. Other conditions of work for domestic workers are obtained from the legal and institutional framework which consists of particular provisions in various laws of the land: the Constitution, the Labour Act (Act No. 651 of 2003) earlier noted and its legislative instruments, the Children’s Act and the Domestic Violence Act. Ghana also ratified seven of the eight ILO core Conventions in 1999 but is among several other African countries yet to ratify Convention 189 on the rights of domestic workers.
The Ghana Employers’ Association, the Association of Ghana Industries and the Chamber of Mines, three important employers’ associations, do not include the majority of employers, particularly owners of small- and medium-sized enterprises. Therefore, tripartite agreements among employers, government and employees are difficult to enforce since most employers are outside the processes.
Tanzania: Domestic workers in both mainland Tanzania and Zanzibar represent 5% percent of the total working age population (15 – 64 years) in Tanzania (23.47 million as of 2012 Population and Housing Census). However, if consideration is given to the people performing domestic tasks, hidden in very informal arrangements, this number increases to 1,728,228 (7 percent of total working age population) reflecting the fact that a large number of people are involved in domestic work without necessarily being recognized as workers and therefore are not able to enjoy their labour rights.
Although domestic services have existed for a long time in Tanzania, it was not until late 1980s that they were subjected to in-depth scrutiny. The most important is the period when domestic labour changed from being occupied by a male labour force to being increasingly occupied by a female workforce. Against this background, there are four key features of domestic labour in Tanzania that stand out: (i) the change from male to female workers; (ii) the recruitment aspect of Undugu (Kinship relations) (iii) the associated rural to urban migration, and (iv) Trafficking for domestic servitude. Each of these factors impact the wage structure for domestic workers in Tanzania and consequently for the purpose of setting minimum wages, the Employment and labour Relations Act recognizes three categories of employers - Diplomats and Potential Businessmen; Entitled Government Officers and the rest of the employers as the final category. This final category has often included high to low income households (ILO, 2015).
In view of this, the Employment and Labour Relations Act of 2004 of Tanzania provides for inclusion of employment standards in all contracts of employment particularly those in respect of wage determination.[1] This, in essence, covers domestic workers as well in the realm of employees generally covered by the law. Notwithstanding, domestic workers are subjected to, among other things, arbitrary deductions, irregular/non-payment of their remuneration and “forced” payment in kind. As such, although domestic workers are considered equal to all other employees in both Tanzania and Zanzibar and therefore protected in respect of remuneration they are on the edge of the protection that the law offers (ILO, 2015).
Conclusion:
Evidently, promoting decent work for domestic workers will require more than establishing regulations or enforcement mechanisms. As Budlender (2011) explains, ‘because domestic work has long been ignored and undervalued, policy and legislation need to be accompanied by a change in thinking about the value of domestic work among employers of domestic workers, leaders and regulators, domestic workers themselves and members of the whole society. Making visible its economic and social worth through tangible and quantifiable measures will help change perceptions, and lend legitimacy to and reinforce actions aimed at improving the working and living conditions of domestic workers.’[2]
However, in the six countries under review, it is evident that efforts to give domestic workers legislative recognition remain inadequate with regards to promoting decent work for domestic workers owing to the common challenge of weak compliance. Employers in the six countries continue to by-pass laid down minimum wages and conditions of service which are clearly stipulated in all the countries in preference to individually negotiated wages engendered by the high levels of unemployment prevalent in these countries; which in turn creates a scramble for the few available jobs at whatever cost these are offered.
Notwithstanding, the adoption of ILO Convention 189 would ensure that countries enact separate and distinct legislation for domestic workers as is the case in South Africa, which is the only country of the six to fully ratify the Convention and in turn enact separate legislation for its domestic workers. Despite selected discontent with South Africa’s Sectorial Determination 7, it cannot be disputed that it has significantly advanced the status of domestic workers who are able to actively organise themselves into trade unions in order to further protect and safeguard their rights. This is one major distinguishing factor for domestic workers in the other five countries where domestic workers minimum wages and conditions of service remain hidden in several related pieces of legislation.
Lastly, while it is desirable to include domestic workers within the scope of generally applicable national labour laws, it has been shown that the specific characteristics of domestic work warrant amendments to existing laws or the enactment of supplemental legislation designed to protect the labour rights of domestic workers more specifically. Overall is equally the need to ensure domestic workers themselves are involved in the determination of their wage structures as opposed to imposition as this takes away the sense of ownership and consequently impedes effective compliance.
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[1] See section 13 of the Act No. 6 of 2004 of Tanzania.
[2] ILO: Budlender, D. 2011. Measuring the Economic and Social Value of Domestic Work: Conceptual and Methodological Framework, Conditions of Work and Employment Series No. 30, International labour Office, Geneva.