Health and Safety: South African Domestic Workers No Longer Invisible

Health and Safety: South African Domestic Workers No Longer Invisible

In an historic judgment, the South African Constitutional Court in mid-November recognized that injury and illness arising from work as a domestic worker in a private home is no different to that occurring in other workplaces and equally deserving of compensation. Beyond recognizing occupational hazards in the home, the decision also recognized the broader harm wrought by the invisibility of gendered, racialized work in the privacy of homes in the context of post-colonial and post-apartheid South Africa.

In the case of Mahlangu and Another v Minister of Labor and Others, the South African Domestic Service and Allied Workers Union (SADSAWU), with support from the Solidarity Center, challenged the constitutionality of provisions of the Compensation for Occupational Injury and Illness Act (COIDA), which precludes domestic workers employed in private homes from making claims to the Compensation Fund in cases of illness, injury, disablement or death at work. The Constitutional Court agreed that this exclusion violates rights to social security, equality and dignity, and it made this finding retroactively applicable from 1994, the date the South African constitution was enacted. In so doing, the court articulated a theory of intersectional discrimination and moved forward its own jurisprudence on indirect discrimination, infusing the right to social security, dignity and retrospective application with an intersectional analysis. It also reframed the narrative on domestic workers: no longer invisible but “unsung heroines in this country and globally”(paragraph 1).

The judgment gives a central role to international law, and establishes that “in assessing discrimination against a group or class of women of this magnitude that a broad national and international approach be adopted in the discourse affecting domestic workers“(Paragraph 42). It continues that, under international law conventions, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), the exclusion of domestic workers from COIDA is inexplicable.

The court found that COIDA is a form of social security because the inability to work or the loss of a breadwinner’s support as a result of the COIDA exclusion, traps domestic workers and their dependents in cycles of poverty. According to the court this exclusion is unreasonable because it did not take into account the needs of the most vulnerable members of society, particularly those who experience compounded vulnerabilities arising from intersecting maltreatment based on race, sex, gender and/or class. It concludes that there is no legitimate objective to the exclusion, rather it entrenches patterns of disadvantage.

This case could be easily disposed on grounds of direct discrimination, since the majority found the exclusion irrational and arbitrary, and therefore constitutionally invalid. However, the case provided the court with a unique opportunity to interpret constitutional provisions on indirect discrimination, using an intersectional framework: Domestic workers “are predominantly Black women … and discrimination against them constitutes indirect discrimination on the basis of race, sex and gender” (paragraph 75). It goes on to find that discrimination on the grounds of race, gender and sex are not only presumptively unfair “but the level of discrimination is aggravated”(paragraph 73).

The court took the opportunity to enunciate a theory of intersectionality, which considers the social structures that shape the experience of marginalization, and the convergence of sexism, racism and class stratification. Viewed historically, the racial hierarchy established by apartheid, placed Black women at the bottom of the social hierarchy and relegated them to low-skilled and low-paid sectors of the workforce, such as domestic work. This sector was and is predominated by Black women and remains the third largest employer of women in South Africa. Yet it continues to be characterized by poverty-level salaries and poor living conditions, in which domestic workers are deprived of their own family while caring for that of their employers. As a result, the court found that domestic workers are a “critically vulnerable group of workers,” declaring the COIDA exclusion invalid both at an individual and group level (paragraph 106).

Background

The case centers on Maria Mahlangu, who was employed as a domestic worker in a private house for 22 years. According to her family, she was partially blind and could not swim. In March 2012 while at work, she fell into her employer’s swimming pool and drowned. When Mahlangu’s dependent daughter approached the Department of Labor for compensation, she was told that she was precluded from doing so under COIDA. Then SADSAWU organizer Pinky Mashiane read about the incident in a newspaper and approached the family to see how she could assist.

In 2013, the Solidarity Center embarked on a research project under a USAID grant to examine domestic workers’ socioeconomic rights in South Africa, which culminated in a list of domestic worker issues requiring urgent law reform. At the top of this list was inclusion of domestic workers in COIDA. Indeed, the issue had been on the agenda since 2001, without legislative reform being passed.

At the same time the Solidarity Center was looking for a litigant to challenge COIDA’s constitutionality. Pinky Mashiane—after having been turned down by multiple lawyers and law centers—was looking for a remedy to assist Mahlangu’s family. The Solidarity Center approached lawyers in South Africa as well as SADSAWU leadership with the proposal to litigate this case in constitutional terms, with financial support. Beginning in 2015, the case wound its way through the South African court system, litigated before the Constitutional Court by lawyers from the Social and Economic Rights Institute (SERI).

The case benefited from sustained advocacy at global and local levels. In 2019 , the Solidarity Center and partners brought the issue of domestic workers’ exclusion from COIDA before the United Nations Committee on Economic, Social and Cultural Rights, which was considering South Africa’s compliance with treaty obligations. In its concluding observations, cited in the Constitutional Court’s decision, the Committee recommended that South Africa include domestic workers in COIDA. Similarly, in the early stages of litigation, the amicus, the Gender Commission of South Africa, expressed frustration at the almost complete absence of information on the types of injuries and illnesses arising in the context of domestic work in private homes. To fill this vacuum, Solidarity Center commissioned qualitative research consisting of in-depth interviews with domestic workers around the country, describing the types of injury and illness occurring in the context of the home. After the COVID-19 pandemic broke out, which had severe consequences for domestic workers, domestic worker unions and partners also put together a petition to try and propel the legislature to include domestic workers in COIDA. Most significantly, at each of the numerous court hearings, the domestic worker unions and groups maintained a constant presence at the court, and in the media, insisting that the death of Maria Mahlangu not be in vain.

Far-Reaching Impact

When Solidarity Center initially proposed constitutional impact litigation on COIDA, it was with the hope that a successful outcome in this case would serve three purposes: obtain much-needed relief for domestic workers who were outside of COIDA’s purview; strengthen domestic worker unions; and create an important precedent that would lay the foundation for jurisprudence on domestic workers that could serve as a global marker.

The Mahlangu decision will clearly achieve the first as it removes the legal obstacle to domestic workers claiming compensation, with immediate and retrospective effect. Meanwhile, the long road to Mahlangu has also strengthened a growing coalition of unions and NGOs that have articulated their claims effectively in all forms of media. The fact that after 26 years of democracy, Mahlangu is the first case brought by the domestic worker union to the apex court of South Africa and guardian of constitutional values is a significant milestone.

Yet, perhaps the greatest import of Mahlangu might lie both in its precedent and in the paradigm it establishes to conceptualize domestic work. Using international human rights norms as a reference point, the court sets up an approach on domestic workers as a category, which stands to benefit domestic workers in South Africa and beyond. It also reasserts the goals of transformative constitutionalism as “undoing gendered and racialized poverty” and insists that an intersectional and historic lens is essential to the achievement of structural and systematic transformation. Indeed, the adoption of a historical lens allows the Court to reframe the narrative of domestic workers and their place in South Africa’s constitutional democracy: no longer powerless and invisible, but foundational toSouth Africa’s constitutional project. This reframing is captured eloquently in the concurring judgment of Justice Mhlantla who asserts that these Black women are smart, creative and survivors; who frequently work in environments that are emotionally and physically challenging, and which carry vestiges of South Africa’s colonial and apartheid past. She concludes: “On the contrary, they have a voice,” and according to Justice Mhlanthla J (paragraph 195) as well as the substance of majority judgment, the Constitutional Court is “listening.”

Statement on Events at the U.S. Capitol

  • Carl Gershman, President National Endowment for Democracy
  • Derek Mitchell, President, National Democratic Institute
  • Dan Twining, President, International Republican Institutes
  • Shawna Bader-Blau, Ex. Director, Solidarity Center
  • Andrew Wilson, Ex. Director, Ctr. For International Private Enterprise

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“We are appalled by the violent and seditious assault at the United States Capitol today.  Nonetheless, we are confident in the enduring strength of American institutions, and that any attempts to subvert our democracy will not succeed.   Those involved in illegal activity today must be held to account.”

“A fundamental tenet of democracy is the peaceful contest of ideas among fellow citizens under law.  After a free and fair election, when incumbents are defeated, a peaceful transfer of power must result.  It is through such democratic processes that fundamental freedoms are protected, and opportunity and justice are possible for all.   We know from decades of experience that the job of democracy is never done, and that democracy is fragile.  But we also know it is resilient.”

“We have faith that our country will soon begin a period of national healing that will renew our democracy.  As Americans continue on their difficult but historic journey to form a “more perfect union” at home, we want to reaffirm our commitment to stand in solidarity with all those around the world who share democratic values and who continue to fight against all those who would subvert them.”

Media contacts:

New Solidarity Center Report: “What Difference Does a Union Make? Banana Plantations in the North and South of Guatemala”

Date: January 27, 2021
Time: 10 a.m., EST
Place: Virtual (registration details coming shortly)

Report author Pennsylvania State University’s Dr. Mark Anner will present report findings with Solidarity Center Executive Director Shawna Bader-Blau. They will be joined in discussion by the first woman coordinator of COLSIBA–the Latin American coordinating body of agricultural unions–Irís Munguía and a representative of the Guatemala banana workers’ union, SITRABI. Event contact: Tom Egan, tegan@solidaritycenter.org

 

New Tool for the Campaign to End Gender-Based Violence at Work

New Tool for the Campaign to End Gender-Based Violence at Work

As union activists around the world urge their governments to ratify International Labor Organization Convention 190, the first global standard to address gender-based violence and harassment (GBVH) in the world of work, they also are educating and mobilizing members, allies and public to take action to end GBVH.

Now, Solidarity Center union activists and partners have a new tool for their campaign: An educational video that explains gender-based violence at work, describes how C190 can address it and how union activists can take the next steps to ensure it is ratified by countries around the world.

The whiteboard animation video—which shows the viewer images being drawn on the screen accompanied by narration—points out that GBVH is one of the most common human rights violations in the world that can affect any worker, but women most of all due to unequal power relations. It highlights how C190 is the first global standard to outline how governments, employers and unions must prevent GBVH—and makes clear that C190 is effective only if governments formally endorse it and pass laws implementing it.

The video updates the Solidarity Center’s popular GBVH whiteboard video for the global campaign to adopt a convention covering gender-based violence and harassment at work. That video was translated into Spanish, Russian, Georgian, Sinhala and Tamil.

Watch the video, share it widely and spread the word. As the video says: “Violence should not be part of the job for any of us.”

Solidarity Center Workers’ Empowerment Project in Bangladesh Pivots in COVID-19 Crisis

Solidarity Center Workers’ Empowerment Project in Bangladesh Pivots in COVID-19 Crisis

As garment factories shut down in Bangladesh during the novel coronavirus pandemic, leaving workers without wages or access to support services, unions and Worker Community Associations (WCAs) around the country rapidly shifted to address the crisis, with Worker Community Centers (WCC) serving as a lifeline for workers, their families and their communities.

The community associations and centers are part of an ongoing USAID-funded Solidarity Center Workers’ Empowerment and Participation project (WEP) launched in 2019 to improve working conditions for workers in the ready-made garment and shrimp and fish processing sectors in Bangladesh. The project builds on the strong foundation WEP established between 2015 and 2019.

In July, the Solidarity Center delivered 30,000 COVID-19 awareness leaflets to its partners in Dhaka and nearby Ashulia, Gazipur, Narayanganj and Savar; as well as Chattogram, Jashore and Khulna. The pamphlets, distributed to thousands of workers and community members by WCC coordinators and union federation organizers, highlight key safety measures during the COVID-19 pandemic, such as proper hand washing, social distancing and wearing masks at all times when outside the home.

“It’s important for us to do our part to get accurate information to everyone in the community to help stop the spread of this deadly virus,” says Rita Saha, WCC coordinator in Rupsha. “Our WCC leaders and members have extensive networks, and we love raising awareness and helping our community.”

Ensuring Fair Wages, Decent Working Conditions
Solidarity Center Workers Empowerment and Participation Program, Bangladesh, garment factory, worker rights

When AFCO garment factory closed during COVID-19, workers received unpaid wages due to their union’s efforts. Credit: Solidarity Center

Even as WCCs and unions distributed resources, including food baskets to families of furloughed garment workers during Ramadan, they carried on the crucial work of ensuring workers receive fair pay during factory shutdowns.

As AFCO Abedin Garments Ltd. got set to permanently close in April without paying workers’ back wages, the Garments Workers Solidarity Federation (GWSF) launched negotiations with management and encouraged the Department of Inspection for Factories and Establishments and the Bangladesh Garment Manufacturers and Exporters Association to intervene. Ultimately, factory management agreed to pay the workers 60 percent of their April salary, one month’s base salary and 60 percent of the base wage for each full year of service. Eligible workers also will receive seven days’ annual leave.

In June, Hop Lun Apparels Ltd., Sammilito Sramik Union (HLALSSU) successfully negotiated a 24-point collective bargaining agreement with factory management covering more than 2,000 workers.

Hop Lun garment factory in Bangladesh, Solidarity Center Workers Empowerment and Participation Program, worker rights, human rights

Union members at Hop Lun garment factory negotiated a contract that addresses gender-based violence at work. Credit: Solidarity Center

“When we submitted demands and negotiated with management, we gave special emphasis on the issues of women,” says Aklima, factory union president. “The guarantee of promotion of women to higher posts and the establishment of sexual harassment committee will empower the women and provide safeguards against sexual abuse and harassment in our factory.”

Training, Legal Support

The Workers’ Empowerment and Participation program also carried out leadership training and legal support that included advising more than 450 workers and winning $10,835 in court for 41 workers. Additional accomplishments over the past year include:

  • 27,213 workers covered by unions in more than 200 factories
  • 104 women elected to leadership positions
  • 2,209 new community members actively participating in Worker Community Associations
  • 21 new unions and worker-driven organizations in the garment and shrimp processing sectors and 12 new garment unions registered
  • 39 worker-leaders trained in achieving gender equality or women’s empowerment at public and private organizations

“The WCC training sessions helped make me more confident and brave, and have helped me understand gender-based violence and harassment,” says one woman garment worker. “This has made it easier for me to handle tough situations at my workplace and in the community.”

Find out more about the Workers Empowerment Project.

Made for this Moment: How ILO Convention 190 Addresses Gender-Based Violence and Harassment in the World of Work During the COVID-19 Pandemic and Beyond

Made for this Moment: How ILO Convention 190 Addresses Gender-Based Violence and Harassment in the World of Work During the COVID-19 Pandemic and Beyond

 

Women workers and allies worldwide campaigned for more than a decade to secure the adoption of International Labor Organization Convention 190, the first global treaty that recognizes the fundamental right to work free from gender-based violence and harassment. This report highlights how C190 addresses sexual harassment and other forms of gender-based violence in the world of work and identifies concrete steps to address it.

Read the full report here.

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