New laws planned for anyone employing a domestic worker in South Africa

The new Employment Services Amendment Bill will target South Africans who employ foreign domestic workers, threatening steep fines and other financial penalties if they are not working legally.

Specifically, households could be hit with a first-time offence penalty of R100,000 and forced to pay appropriate back wages if they have been underpaying.

The Bill, currently being processed by Parliament, is legislation broadly addressing illegal foreign workers in the country.

Primarily, the Bill aims to tighten enforcement against the employment of undocumented foreign nationals in the country.

It also wants to close “loopholes” in the current labour laws, establish a legislative framework for labour migration, and protect jobs for South Africans by setting sector-specific quotas for foreign employment.

While the upcoming laws apply across all employment sectors, the Department of Employment and Labour (DEL) has stressed that they will also apply to private households.

According to Stats SA, private households employ approximately 1.2 million workers in the country, of whom about 850,000 are domestic workers.

However, many households are flouting the country’s employment laws by hiring foreign national domestic workers who are not legally allowed to work in the country.

While reasons for this vary, one commonly cited is the ease of informally employing someone outside the system.

Hiring a domestic worker the ‘right’ way requires employers to meet South Africa’s legally required employment standards.

This includes paying the National Minimum Wage and registering for the Unemployment Insurance Fund and the Workers’ Compensation Fund.

Hiring a domestic worker who is not in the system, ie, illegally, removes these onerous hurdles—but now opens employers up to harsh punishment.

The DEL said that the laws are designed not to punish the workers, but rather the employers who hire them to try to take advantage of their situation and deny them their rights.

“The bill is not aimed at denying migrant workers their rights, but rather at ensuring that all workers are protected from unfair labour practices and exploitation,” the department said.

R100,000 fines and back pay

Notably, it has always been illegal to hire an undocumented foreign worker in the country.

Employing undocumented foreign nationals is a criminal offence under Section 38 of the Immigration Act and can result in imprisonment.

The new Bill ramps up enforcement and introduces steep, escalating penalties for those caught running afoul of the law.

The bill proposes imposing a R100,000 fine on employers hiring illegal foreign workers as a first offence.

A second offence within three years would result in a R200,000 fine per worker.

This penalty can escalate to up to R1 million or even jail time if employers continue to disregard the country’s employment laws. 

This applies to all employers, including private households.

Additionally, under section 12D of the bill, employers may also find themselves on the wrong side of South Africa’s other legislation, such as the National Minimum Wage Act.

This will result in further financial pain.

The DEL said that section 12D specifically seeks to prevent “unscrupulous employers” from employing foreign nationals on terms and conditions of employment that are inferior to those provided for by labour legislation and collective agreements.

According to the law, even a worker employed unlawfully in the country is still entitled to enforce any claim they may have under any law against their employers.

This means that even if an employee is working unlawfully, the new laws will enable them to claim back any benefits that would typically be afforded to a lawful employee.

Under the coming laws, labour inspectors and bargaining council agents will be empowered to bring claims on behalf of these workers.

To avoid penalties, employers must ensure that foreign domestic workers have valid passports and the appropriate visas or permits authorising them to work in South Africa.