The Garden Route's eruption of new residential buildings and property developments is rivalled only by the frenzied buying and selling of existing homes. This boom brings with it the promise of job creation as most new homeowners will require the services of a domestic worker. Not all of these future employers will be aware of the laws governing their new employment relationships.

A Sectoral Determination was published on 1 September 2002 that established not only a minimum wage, but also includes other minimum terms and conditions that apply specifically to domestic workers. The minimum wage applies to all domestic workers, but the rest of the determination, covering areas such as hours of work, leave and termination of employment, applies only to domestic workers who work 24 hours or more per month for an employer.

WHO IS A DOMESTIC WORKER?
Most people think that this term only encompasses the person who cooks or cleans in their private home. This is not the case. A "domestic worker" means any domestic worker or independent contractor who performs domestic work in a private household and who receives, or is entitled to receive, pay and includes: a gardener; a person employed by a household as a driver of a motor vehicle; a person who takes care of children, the aged, the sick, the frail or the disabled and domestic workers employed or supplied by employment services.

The determination does not, however, apply to domestic workers employed on farms on which employees performing agricultural work are employed.

MINIMUM WAGE
The controversial minimum wage took effect on 1 November 2002 and draws a distinction between domestic workers who work more than twenty-seven ordinary hours of work per week, and those who work fewer ordinary hours of work per week. A further distinction is drawn between domestic workers in rural and urban areas.

Domestic workers who work more than 27 ordinary hours of work per week for the period 1 November 2002 to 31 October 2003 Rural Urban
Hourly rate R3.33 R4.10
Weekly rate R150.00 R184.62
Monthly rate R650.00 R 800.00
Domestic workers who work 27 or less ordinary hours of work per week for the period 1 November 2002 to 31 October 2003 Rural Urban
Hourly rate R3.66 R4.51
Weekly rate R98.82 R212.77
Monthly rate R428.22 R527.67

An employer must pay a domestic worker at least the prescribed weekly or monthly wage, or by agreement, at the hourly rate. Any domestic worker who works for less than four hours on any day must be paid for four hours' work on that day.

Specifically included in "urban areas" are, amongst others: Berg River, Breede River, George, Knysna, Mossel Bay, Oudtshoorn, Plettenberg Bay and Swellendam.

ANNUAL WAGE INCREASES
Most employers will find these wages extremely low compared with what they are currently paying their domestic worker. Remember that if you have been paying your domestic worker more than the prescribed minimum you may not unilaterally reduce the wage.
The determination also requires that the employer of a domestic worker grant an annual wage increase of at least 8% on 1 November 2003 and a further increase of 8% on 1 November 2004. This increase must be calculated on the actual wage that has been paid in the preceding month. Provision has also been made in the determination that if the annual increase in the Consumer Price Index six weeks before a wage increase comes into effect is 10% or higher, domestic workers will be entitled to receive an increase equivalent to the increase in the CPI.
OTHER REQUIREMENTS
Aside from the minimum wage, the determination enforces other minimum requirements. For example:
¨ A detailed written particulars of employment that must be produced by the employer on commencement of employment;
¨ The payment of wages in a sealed envelope accompanied by a payslip or statement, a copy of which must be kept by the employer for 3 years;
¨ An employer may not require or permit a domestic worker to work more than 45 hours in any week (nine hours on any day for domestic workers working for five days or less in a week or eight hours in any day for domestic workers working on more than five days in any week);
¨ Overtime must be paid at one and a one-half times the usual wage and may not exceed 15 hours per week. A domestic worker may not be permitted to work more than 12 hours, including overtime, on any day;
¨ A domestic worker who works continuously for more than five hours must be given a meal interval of at least one continuous hour;
¨ Annual leave of at least 3 weeks per year; During every cycle of 36 months sick leave equal to the number of days the employee would have normally worked in a six week period; Five days family responsibility leave per year if the employee has been employed for longer than four months and works at least four days per week for that employer and maternity leave of four consecutive months must be granted to a domestic worker;
¨ Notice of not less than one week must be given if the domestic worker has been employed for six months or less and notice of four weeks must be given if the domestic worker has been employed for more than six months.

The Sectoral Determination has a certain flexibility allowing employers and employees to come to agreements regarding hours of work in order to structure the employment contract to meet their particular needs. Many "standard" employment contracts only give the basics and do not indicate negotiable provisions. It is advisable to consult your nearest Department of Labour, labour consultant or labour lawyer before drawing up an employment contract in order to find out which terms of the contract are in fact negotiable.

Michelle Wasserman has a BA and LLB specialising in labour law. She is a labour consultant working primarily for employers.