Minimum wage and domestic workers’ right to basic conditions of employment: Are employers complying?

Domestic work is one of the few employment opportunities open to poor and often uneducated men and women. With few formal jobs available and facing gender discrimination, often coupled with discrimination based on race or ethnicity, options for decent work or wage are few. This paper investigates domestic workers minimum wage in relation to Basic Conditions of Employment Act 75 of 1997. The ongoing demand for domestic services urged researchers to ask the question, whether domestic workers are being paid accordingly. Sectoral guidelines prescribe minimum wage regulations per area; data on the other hand suggest that employers are non-compliant and domestic workers are unaware of their basic right to minimum wage. Furthermore, there is a noted discrepancy in pay per unit of time as workers increase the amount of time they work. Specifically, working is found to be significantly negatively correlated with pay rate. Research has also revealed that the misconception relating to foreign nationals being paid a different rate as compared to South African nationals is nonexistent.


INTRODUCTION
The Basic Conditions of Employment Act (BCEA) (Republic of South Africa, 1997, Section 1) defines a domestic worker as an employee who performs domestic work in the home of his or her employer and includes a "gardener", a "person employed by a household as a driver of a motor vehicle" and a person "who takes care of children, the aged, the sick, the frail or the disabled".A unique feature of domestic work is that it is performed by individual domestic workers in private homes.In many instances the domestic worker also lives on the premises of the employer.The nature of domestic work attracts a number of labour concerns, such as high levels of control exercised by the employer, regimented lifestyle, isolation, lack of privacy, job insecurity, poor working conditions, low wages, long hours and a heavy workload.
At the 99 th Session of the International Labour *Corresponding author.E-mail: wiukpere@uj.ac.za.
Organisation (ILO), International Labour Conference, the ILO governing body agreed to place an item on decent work for domestic workers on the agenda (ILO, 2011:1), with a view to setting out the labour standards.Domestic work according to the ILO (2010:5) is one of the oldest and most important occupations for millions of women around the world.It is rooted in the global history of slavery, colonialism and multiple gender discrimination (Sheppard, 2011:16.).
In the past two decades demand for care work has been on the rise.The massive incorporation of women in the labour force, the ageing of societies, the intensefication of work and the frequent lack or inadequacy of policy measures to facilitate the reconciliation of family life and work underpin this trend (ILO, 2010:1.).Today, domestic workers make up a large portion of the workforce, especially in developing countries, and their number has been increasing.Domestic work, nonetheless, is unappreciated and poorly regulated, and many domestic workers remain overworked, underpaid and unprotected.Accounts of maltreatment and abuse, especially of live-in and migrant domestic workers, are regularly denounced in the media.In many countries including South Africa, domestic work is very largely performed by child labourers (Budlender and Bosch., 2002:ix.).This is due in part to the fact that paid domestic work remains virtually invisible as a form of employment in many countries.Domestic work unlike other sectors is conducted at the home of the employer.Poor regulation of the work environment allows for abuse at several levels.Poorly regulated working hours and pay differentiation are but a few examples.
The domestic workers are generally women who do not work alongside other co-workers, but in isolation behind closed doors.Their work is not aimed at producing a profit, but at providing care to millions of households.Domestic work typically entails the otherwise unpaid labour traditionally performed in the household by women.As very little or no skill is required this often explains why domestic work is unrecognized in monetary terms and is often informal and undocumented.It tends to be perceived as something other than typical employment, as not fitting the general framework of existing labour laws despite the fact that its origin dates back to the "master-servant" relationship (International Labour Organisation, 2010a:1).

Problem statement
Domestic work is often overlooked and misunderstood.Protective legislation like the Basic Conditions of Employment Act has attempted to undo the imbalance and the injustices perceived by this sector.However, the effect of such protection has not been realized by most.This paper investigates domestic workers (as defined by the Basic Conditions of Employment Act) wage and working hours.

Research question
The following research questions will be considered: 1. What are the variances in wage and working hours?2. Are there statistically significant relationships between wage and working hours?3. Are there statistically significant differences between wage and working hours as a function of being a South African National as opposed to a Foreign National?

The aim and objectives of the paper
The paper aims: 1.To assess the level of compliance with minimum wage and working hours as outlined in the Basic conditions of Employment Act No 75 of 1997 2. To investigate the variance in wage and working hours 3. To examine the statistically significant relationship between wage and working hours 4. To investigate statistical significant differences between wages and working hours as a function of being a South African National as opposed to a Foreign National.

Significance of the study
The results from this study will improve the understanding of the level of compliance of employers with the regulations and the effects of the regulations on domestic workers.It will further, help dispel misconception relating to pay differentiation between South African and foreign nationals.

Structure of the paper
The structure of the rest of this article are as follows.A description of the research methodology used in the study.Background and review of the literature on legislation pertaining to the domestic worker sector followed by the results of the study in terms of the stated research objectives.The article concludes with a discussion of the main findings, conclusions and recommendations as well as the limitations.

Research design and approach
The researchers used a quantitative micro-research approach.Practical considerations suggested a survey-based field study design.This entailed the development and administration of an experimental survey questionnaire that explored working hours and wages amongst domestic workers.

Research method and measuring instrument
The researchers developed a standardised instrument in a field study design.Structured interviews were conducted with 93 domestic workers.Data was gathered in March of 2012.Structured interviews were used with the intention of preventing misunderstandings and misinterpretations of questions as "researchers can explain exactly what information they need from the respondents and can immediately clarify uncertainties about the questions.It is also valuable for overcoming language barriers, especially when dealing with unschooled samples (Matjeke, 2012:4).The research questions were explored in the context of the problem statement and aims, by means of descriptive statistics and inferential procedures.In particular, the descriptive statistics entailed means and medians relating to working hours and the inferential statistical procedures of Spearman"s Rho and the Mann-Whitney U-test were used to explore the relationships and differences amongst the variables.

Research procedure
The researchers used criterion sampling as their sampling technique because not all individuals are employed as domestic workers.Individuals chosen had to meet the criterion for quality assurance (Jacob, 2007:35;Matjeke, 2012:4).Researchers used a combination of convenience and purposeful sampling to complement criterion sampling.Sample groups where purposefully identified and in some instances conveniently sampled."The purpose of using this method was to allow researchers to target those places where there is abundant information to ensure that the investigation is comprehensive" (Matjeke, 2012:4).Adherence to accepted ethical standards was observed and participants were informed as to confidentiality, anonymity and the purpose of the research.

THEORETICAL FRAMEWORK
In September 2000, there were roughly 1.025 million employees in the domestic work sector in South Africa.This figure dropped to 977 000 employees in September 2003.According to Matjeke (2012:1), this seems to correlate well with the enactment of minimum wage legislation in September 2002.However, 2007 saw a slight improvement in the figures from 977 000 to over a million (1.003 million) (Statistics South Africa, 2009:15).This figure remained at about one million in 2010 (Department of Labour, 2010).Data from the International Labour Organisation (2010a:6) show that domestic work in developing countries makes up between 4 and 10% of total employment.In industrialised countries, this figure is much lower and ranges between 1 and 2.5%.Domestic work is one of the earliest occupations for women in South Africa and provides (Matjeke, 2012:1) employment to many.The wages or salaries and employment conditions of domestic workers have raised worldwide concern.Domestic work is an unstable, lowly paid, insecure and unprotected form of employment.Abuse and exploitation are common.These human right concerns have resulted in the regulation of this sector (Mantouvalou, 2012).
South Africa differs from many other ILO member countries in the extent to which domestic work is regulated; during the apartheid era domestic workers were excluded from the protection of labour law.However, in the late 1980s the protection of labour legislation was gradually extended.This process was undertaken by including these workers in the scope of general legislation such as the Basic Conditions of Employment Act, No 75 of 1997 and Labour Relations Act, No 66 of 1995, and subsequently through the establishment of a Sectorial Determination for domestic workers and through including these workers in the scope of the Unemployment Insurance Act, No 63 of 2001 (ILO, 2010).
South African domestic workers are currently protected in several ways, although the conditions enshrined in these pieces of legislation are very basic and the minimum wages are often set very low.Recent research undertaken by the ILO (2010, cited in Budlender, 2010:4) has confirmed that, many workers do not enjoy the basic low level of protection that is, in theory, provided by these laws as enforcement is difficult in a situation where most workers are the only such employee in a workplace, their workplace is a private home, and the relationship between worker and employer is very unbalanced in terms of power.
The private home which does not conform to a conventional workplace allows for little interaction with other workers or trade union representatives.These anomalies hinder domestic worker exposure to relevant legislation.The level of domestic worker knowledge regarding relevant legislation is a concern.Limited awareness of protective legislation may suggest that legislators have produced legislation in isolation of the sector they intend to protect.

Age profile of the domestic workers
The average age of the respondent in this study was 37.04 years, for domestic workers; 38.48 years and gardeners; 33.86 years.
The average age of the respondents in the study was 34.8 years conducted in 2007 (Matjeke, 2012:6).An earlier survey undertaken by Bothma and Campher (2003:197) in Langenhoven Park, and in Bloemfontein in 2001 by Bothma and Campher (2003:197), and Blaauw and Bothma (2010:7) in 2007, reported significantly higher average ages of 42.6 and 43.3 years, respectively.Gender 31.2% of the respondents were male while 68.8% were women."Domestic work is also a major work sector of women in Asia and Africa: 11% in Botswana; 11% in the Philippines; 12% in Namibia; and 16% in South Africa.However, in very few countries, more than 1% of men are employed in domestic service" (Women in Informal Employment: Globalizing and Organizing (WIEGO), 2012:1).Gardeners who are generally men are included within the definition of domestic workers under the sectorial determination for the domestic worker sector (Republic of South Africa, 1997 Section 51).Researchers therefore included gardeners within the survey as being representative of the definition.All gardeners in the present study were male and there were no males who were not gardeners.

Nationality
All domestic workers and gardeners who participated were a combination of various nationality and not exclusively black South African.Several participants where non-South African, consequently, providing researchers with a representative South African population.A possible explanation as postulated by the researchers; migrants are usually unemployed and marginalised they tend to jostle for whatever work and money they can get as domestic workers fear of losing an income is a primary concern.
The number of participants that have mentioned their nationality are indicated in Table 1.Table 1 indicates 87.1% response to their nationality, the 12.9% deficit in response could be attributed by the concern and fear of not being identified as a foreign national.

Exploring level of compliance of minimum wage and working hours
This paper explores the level of compliance of minimum  (Mantouvalo, 2011:4).This was the case in the present study where all such workers were female.The precariousness of domestic work lends itself to; include the element of certainty of employment continuity, control over working condition, legal protection, and level of income (Mantouvalo, 2011:4).
The regulation of domestic labour sets challenges because of its invisibility and the stigma attached to it (WIEGO, 2012:1).Common areas of exploitation includes non-compliance of wage guideline as per prescribed legislation and excessive working hours.The exploitation suffered by domestic workers highlights the urgency for the need to explore domestic worker wage and working hours.

Working hours and wage
The wage of a domestic worker is defined to include all payments made in cash or in kind for his or her employment.The minimum wage that one can pay to a domestic worker is set by the sectoral determination for the domestic worker sector (Republic of South Africa, 1997, Section 51), and it increases annually.The sectoral determination lays down conditions of employment for domestic workers such as hours of work, leave and termination of employment.It also prescribes the minimum wage rates that employers are required to pay per area (Republic of South Africa, 1997, Section 51, Area A and Area B).Adherence to the rates as set out in sectorial determination for the domestic worker sector ensures that there are fewer discrepancies in wage.Non adherence may result in perpetuating wage gaps, unfair wage discrimination and labour injustice.
The wage of a domestic worker must be calculated on the basis of the number of hours he or she normally works.Hourly wages may be calculated by dividing the daily wage by the number of hours worked in a day."Employers must pay domestic workers in South African currency, daily, weekly, fortnightly or monthly and it must be in cash, by cheque, or by direct deposit into an account of the domestic worker"s choice.Where the payment is in cash or cheque, it must be given to the worker at the workplace, during the working hours and in a sealed envelope" (Nagtegaal, 2012:1).
Ideally, the employer should include a pay slip with the wage.The pay slip or a statement, should include; the address of the employer, the domestic workers name and the period he or she is being paid for, the wage rate, the overtime rate, the number of ordinary and overtime hours worked during that period, and also the worker"s total wage (Republic of South Africa, 1997, Section 33)."Any deductions made must be detailed" (Nagtegaal, 2012:1).
Discrepancies in wage among participants are clear.Participants are certainly unaware as to the correct wage per hour for a particular area as set out within sectorial determination for the domestic worker sector (Republic of South Africa, 1997, Section 51).From Tables 1 and 2 of Area A, participants belonging to Area A within the City of Johannesburg Metropolitan Municipality are sets out according to the minimum wages for domestic workers who work more than 27 ordinary hours per week, and those who work 27 ordinary hours per week or less respectively (Department of Labour, 2012:10-11).This amount in Area A of the sectorial determination for the domestic worker sector states that a domestic worker who works more than 27 ordinary hours per week should be paid a minimum wage of R8.34 and R9.75 should he/she work 27 h or less (Department of Labour, 2012:10-11; Republic of South Africa, 1997, Section 51) (Table 1).
Accordingly, researchers have concluded based on the data presented in Figure 1 that participants were being underpaid according to the number of hours worked.Employers are therefore non-compliant of the said legislation.In a focus group conducted by Community Agency for Social Enquiry (CASE), Motala (2010:1) reported in 2012 that it was evident that earlier campaigns about the sectoral determination for domestic workers had some impact on sensitising both workers and employers to the fact that legislation that governed wages and working conditions existed.Current data as presented in Figure 1 refutes these findings made by Motala (2012:1).

Variance in working hours and wage
In reporting wage data for the sample both the average and median are reported.The median is typically used in scenarios where data are characterized by skewness caused by outlying variables.In the case of wage it is not uncommon to find positive skewness where some individuals may earn a wage that is significantly higher  than the average and so embody outliers.As the median is "relatively unaffected" by such outliers it is often the preferred measure of central tendency in cases where outliers are present (Field et al., 2012:23).One such example can be seen with a participant reported to received five hundred Rand a day.
Researchers have identified a pattern (evidenced in Table 2) in that more hours worked, the more dependent participants were on a specific employee as alternative sources of income is presumed to diminish.This shift in power towards the employer apparently reflects in the diminishing wage and increasing working hours with each iterative progression of employee commitment to employer.A pattern of near indentured servitude seems to emerge.
The median wage is used in addition to the mean wage as wage is typically positively skewed.Practically what this means is that the upper wage limit is not restricted whereas the lower wage limit is naturally curtailed at zero.As a result of this natural propensity towards positive skewness many wage statistics the world over are reported in terms of their median.Wage per hour as illustrated in the Figure 1 clearly presents a picture of concern.Figure 1 when read in conjunction with Figure 2 suggests that as the hours of work extends wage diminishes.
Data presented in Table 2 made researchers to conclude that fewer hours worked resulted in higher salary however this is not the choice made by many.Researchers assume that job security, maybe a possible reason for choosing longer hours of work for a far lesser wage.
A qualitative impression of Table 2 leads to the statement previously mentioned regarding the apparent indentured servitude that is explicated in the apparent negative association between median wage and working hours.This is then explored by means of a Spearman"s Rho.Results are presented in Figure 3.The relationship between the average number of hours per day and the median wage per day was investigated using Spearman"s Rho correlation coefficient.The choice to use this non-parametric test is informed by the small sample sizes that necessarily do not meet the assumptions for a parametric test such as Pearson"s product moment correlation coefficient.There was a strong, negative correlation between average number of hours per day and the median wage per day, rho = -0.937,n = 7, p < 0.005.

Statistical significant differences between wage and working hours as a function of being a South African national as opposed to a foreign national
Motala (2010:1) quotes a focus group interviewee (Domestic worker from Orlando East working in a Johannesburg suburb) who stated that "people from Zimbabwe are willing to work for R40 a day; I cannot do that because I cannot live off that.Most of the people working in the suburbs and complexes are the cheap labour from other countries.If you have a problem and talk to your boss, if you have an argument, they tell you that you can leave now because there are plenty of people from Zimbabwe that will work for cheap, that"s their advantage".Motala (2010:1) in his focus group interviews touched on a concern expressed by many.The fear of losing one"s job to a migrant who would often agree to any wage is a concern for many.Therefore the assumption exist that foreign national are being paid more than South African nationals.
Following this the potentially erroneous effect of nationality researchers then chose to explore this misconception using the Mann-Whitney U Test. (These are described as follows).There is no difference as a function of being a National or Foreign National.
1.A Mann-Whitney U test revealed no significant difference in the wages per day (Rands) between South African citizens (Mr = 40.75,n = 61) and foreign nationals (Mr = 45.45,n = 22), U = 595, z = -0.788,p = 0.431.2. A Mann-Whitney U test revealed no significant difference in the working days per week between South African citizens (Mr = 46.91,n = 66) and foreign nationals (Mr = 47.22,n = 27), U = 885, z = -0.052,p = 0.958.3. A Mann-Whitney U test revealed no significant difference in the number of hours per day between South African citizens (Mr = 40.75,n = 65) and foreign nationals (Mr = 45.45,n = 27), U = 809.5,z = -0.591,p = 0.554.4. A Mann-Whitney U test revealed no significant difference in the wages, hours worked, and days worked between South African citizens and foreign national.These data dispels the misconception that foreign nationals are being paid differently to South African nationals.

DISCUSSION
The Basic Conditions of Employment Act No 95 purpose is designed to specifically give effect to and regulate the right to fair labour practices by establishing and enforcing basic conditions of employment and regulating the variations of such conditions.Provision is made for ordinary hours of work, overtime, meal intervals, and pay for work on Sundays, night work, public holidays, annual leave, sick leave and rules pertaining to proof of Domestic workers who are included in the sectoral determination for domestic worker within the BCEA may not be forced to work more than 45 h in any week, or work more than 9 h per day for a 5 day work week, or more than 8 h a day for a six-day week (Republic of South Africa, 1997, Section 9).
Overtime work may not exceed more than 15 h of overtime per week, or more than 12 h on any day, including overtime.Overtime must be paid at 1.5 times the employee"s normal wage, or the employer can give the employee paid time off (Republic of South Africa, 1997, Section 10).This would depend on the agreement between the employer and domestic worker.
Any time worked on Sundays or public holidays must be paid at double the normal hourly wage, "except where the work is part of the worker"s ordinary hours of work (in other words, if the employee normally works on a Sunday); the rate will then be 1.5 times the normal rate" (Republic of South Africa, 1997, Section 16;Nagtegaal, 2012:1).Domestic workers are entitled to a daily rest period of 12 consecutive hours between ending work and starting work the next day.Rest period per agreement may be reduced to 10 h for a worker who lives at the workplace and whose meal interval lasts for at least three hours.A weekly rest period of 36 consecutive hours including Sundays (unless otherwise agreed), must be given (Republic of South Africa, 1997, Section 15-16).
Standby work is when the domestic worker is required to be at the workplace between 8 p.m. and 6 a.m. the next day, is allowed to sleep, but must be available to work if necessary.Typically, this happens when a worker is looking after small children.This may not be done more than five times per month, and it must be compensated by an allowance (Republic of South Africa, 1997, Section 14).
In respect of meal intervals, the domestic worker is allowed one hour lunch break after five hours of work.The employer and worker may agree to shorten one hour lunch break however, this break may not be less than 30 min (Republic of South Africa, 1997, Section 15).During the break the worker may be required to perform only duties that cannot be left unattended (Nagtegaal, 2012:1).
In the interests of the well-being; education; physical and mental health; and spiritual, moral and social development of children; the employment of children under the age of 15 according to the sectoral determination seven for domestic worker (Republic of South Africa, 1997, Section 51) is illegal, and children under the age of 18 may not be employed to do inappropriate work.Data suggest that the average age of the domestic worker was 37.04 years, which is well within the legal age limit.Data indicates that there may be a trend in the fluctuation in the average age of the domestic worker and that further research as to the reason of the fluctuation should be considered.
New data regarding the predominant gender of the domestic worker has not changed.Domestic work continues to be female dominated.However, the Nationality of domestic workers in South Africa is very diverse.Zimbabwean migrant domestic workers account for the largest percentage of domestic workers according to the data.This is indicative of the research conducted by the Forced Migration Studies Programme (FMSP) who concluded that "Zimbabwean migrants currently make up the largest group of international migrants in the country.Including both recent arrivals and long term residents, FMSP estimates that there are between 1 and 1.5 million Zimbabweans currently in South Africa" (Forced Migration Studies Programme (FMSP), 2010:3).
In addition to noting that 8.6% of the sample comprised of Zimbabwean Nationals and 1.1% Namibian, 3.2% Malawian, 1.1% Mozambican, 1.1% Zambian and 1.1% Chinese, research chose to compare wage earned by South African Nationals with their foreign counterparts only to find no significant difference.
However, variance in wage and working hours where blatant domestic workers who tend to work longer hours are being paid less.According to the data one could argue that in order to earn more one should work less.The need to provide consistent income is a concern for many.The driver behind this trend may be attributed to eminent recession, unemployment or inefficiencies and gaps in the immigration framework.
In assessing the level of compliance, minimum wage and working hours with the Basic conditions of Employment Act No 75 of 1997, the variance in wage and working hours is statistically significant.Domestic workers are underpaid and thus proving that employers are non-compliant and domestic workers are unaware as to their entitlement to a minimum wage.
Earlier survey undertaken by Blaauw and Bothma (2010:7) in 2007, reported levels of compliance however, most recent data as presented in this paper show significant irregularities in the wage earned by domestic workers when compared to the number of hours worked.As stated previously, the theory of indentured servitude begs to be explored.Further research needs to be conducted on why domestic workers choose not to complain.Is this placidness a product of unawareness or fear of unemployment?

Limitations of study
Several limitations to the study arose as a result of participants being afraid of being identified as migrants.Suspicion regarding the content of the questionnaire led to many participants refusing to participate in the study.Sample size should have been larger and distributed to other areas around the Johannesburg Central Business District.An additional question should have been included in the questionnaire regarding xenophobia and the domestic worker.This could have helped clarify the debate as to foreign nationals and wage in greater depth.
Male domestic workers were not as open to answering the questionnaires when compared to their female counterparts as with most studies the limitations are often discovered in hind sight.Alternatively this leaves room for other researchers to explore aspect of this study that allows for greater understanding of the dilemma faced by many domestic workers in South Africa.

Conclusion
This paper has aimed to answer research questions based on evidentiary data gathered by the researchers.The findings of which have shed light on the level of compliance of minimum wage and working hours with the Basic conditions of Employment Act No 75 of 1997 whilst investigating the variance in wage and working hours.Researchers examined the statistically significant relationships between wage and working hours only to show that employers are non-compliant and of domestic workers unawareness of their right to a minimum wage.Research further proved no statistical significant differences between wages and working hours as a function of being a South African National as opposed to a Foreign National.
The study has shown that ages of domestic workers tend to fluctuate and most migrants in South Africa originate from Zimbabwe and compliance of the sectoral determination for domestic workers in 2007 was relatively higher than in 2012.The researchers propose that other micro studies be conducted in the area of domestic worker perceptions of the Basic Conditions of Employment Act.The purpose of which would be to test their knowledge as to the content and their rights whilst creating awareness, thereby giving domestic workers an opportunity to speak out.

Figure 1 .
Figure 1.Number of hours per day.Source: Survey Data.

Figure 2 .
Figure 2. Wage per day.Source: Survey Data

Figure 3 .
Figure 3. Days worked per week.Source: Survey Data.

Table 1 .
Percentage of participants per Nationality.

Table 2 .
Domestic workers average, minimum, maximum, median and mean wage per week.

of days worked per week Number of respondents Average number of hours per day Minimum wage per day (Rands) Maximum wage per day (Rands)
Source: Survey Data.