The other implication is that non-compliant employers are in fact breaking the law and are subject to fines, prosecution, and in extreme cases, possible incarceration.
Yendor Felgate, CEO of Emergence Growth Services, a provider of human capital management, states that non-compliance may be completely unintentional, and that adoption of compliance may be hindered due to mass ignorance.
The most recent National Census is expected to declare a conservative figure of approximately 900 000 domestic workers in South Africa, although this figure would be accepted as being lower than the true amount. It is also suggested that of this, up to 28% of domestic workers remain without the necessary documentation or agreement of formal employment with employers. To rectify this matter, the Department of Labour has initiated on-going inspections to ensure that compliance with the acts is achieved.
Felgate believes that if most domestic worker employers knew more of the requirements and processes to gain compliance, that they would do the right thing and complete the necessary procedures. "Our research into why so many employers fail to legalise their domestic service arrangements indicates that while most employers are keen to do the right thing, few are aware that that their two-day-a-week domestic worker qualifies as an employee. Others are just overwhelmed by the administrative hassle involved in formalising contracts, registering with UIF and producing a payslip.
"Non-compliance is therefore, in the majority of cases, not a result of malicious intent, but rather a result of simply not knowing what needs to be done, or how to do it. Sadly, this is probably a result of many years of unregulated domestic employment, where domestic work was seen as an informal career and therefore not subject to any employment legislation. While I do think that it is generally known that domestic workers are entitled to employment rights, our research suggests that there may be confusion as to what these rights are."
Pieter Laubscher, deputy director for electrical engineering within the Department of Labour confirmed that most of the inspections are, and will continue to be done in residential areas, and that inspectors would not accept ignorance as an excuse from domestic employers who are found not to comply. Where the department uncovers instances of non-compliance, inspectors issue the employers with undertaking and compliance orders. Should employers refuse or fail to comply with the orders, the department would recommend prosecution to Labour and Magistrate Courts.
Laubscher further stated that information pertaining to the requirements for domestic worker employment is freely available through the Department of Labour's website, as well as any labour centre.
While basic legal compliance remains a critical objective for both the Department of Labour as well as the domestic worker industry, another key issue that requires adoption is that of employee benefits and social protection. Basic employee benefits afforded to employees in corporations are often not afforded to domestic workers, and it is usually the domestic workers that require the social protection benefits more than any other profession.
