REGULATING THE EMPLOYMENT OF DOMESTIC WORKERS; A LOOK AT THE LABOUR (DOMESTIC WORKERS) REGULATIONS,


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  • Oct. 4, 2021
  • Harrison Kpotor, Esq

ABSTRACT

Domestic workers in Ghana for a long time were not regulated by law and were at the mercy of employers who paid them a pittance for work done. In order to put a stop to this, the Minister for Labour by the authority conferred on him under section 174 of the Labour Act, 2003 (Act 651), made the Labour (Domestic Workers) Regulations, 2020 (L.I 2408) on the 11th day of June, 2020, which came into force on 23rd July, 2020. This Legislative Instrument (L.I)[1] is to regulate the employment relationship between domestic workers and their employers. It prescribes, among other things that an employer of a domestic work should provide a written contract to be signed by both parties. It provides some mandatory requirements the contract must satisfy. The purpose of the L.I is to protect domestic workers against exploitation and harsh working conditions that they are often subjected to. This step is laudable, however, the L.I fails to make provision for sanctions where there is non-compliance. It also fails to mention the growing issue of agency creeping into the domestic work space. This article discusses domestic work in Ghana, vis-a-vis L.I 2408 and highlights the salient regulations in the L.I.


1.0       INTRODUCTION

Domestic workers, or “house helps” as they are popular called in Ghana play very important roles in our domestic settings. From working in the kitchen to taking care of kids of the house, the importance of their roles cannot be overemphasized. Despite these important roles they play, their activities were unregulated, which exposed them to exploitation, abuse of all kinds and terrible working conditions. We often hear accounts of harrowing experiences house helps endure in the performance of their duties. The Ghana Statistical Service’s 2015 Labour Force Report[2] reports that among the employed population who are 15 years and older in the informal sector, 0.5% are domestic workers. This represents 42,371 of the employed population. Of this number, 13,315 were males while 29,056 were female. While some of these domestic workers live with their employers, people they work for, others only go to the homes to work and return to their personal places of abode. The same report also reveals that there were 1,994 injuries recorded among these domestic workers during the course of their employment and none of them received any form of compensation. This is disheartening. 


In order that the dignity and interest of domestic workers are protected, the Minister responsible for Labour by the power conferred on him under section 174 of the Labour Act, 2003 (Act 651), made the Labour (Domestic Workers) Regulations, 2020 (L.I 2408) on the 11th day of June, 2020, which came into force on 23rd July, 2020. Regulation 1 provides the purpose for L.I 2408 as follows:

  1. The purpose of these Regulations is to
  2. protect the rights of a domestic worker; and
  3. define the employment relationship between a domestic worker and the employer of that

worker.

Regulation 2 goes on to state the persons to whom the L.I applies. It provides that 

  1. These Regulations apply to
  2. a domestic worker; and
  3. the employer of a domestic worker.


1.1 Who is a domestic worker?

Section 175 of the Labour Act, 2003 (Act 651) defines domestic workers as a person who is not a member of the family of a person who employs him or her as house help. According to this definition a domestic worker is not a member of the employer’s family. 


1.2 Who is an employer?

Section 175 again defines “employer” as any person who employs a worker under a

contract of employment. By merging these two definitions, one could safely define a Domestic Worker as a person who is not a member of the family of a person who employs him or her under a contract of employment as a house help. 


2.0 MAJOR HIGHLIGHTS OF L.I 2408

2.1 Regulation 3

In furtherance of section 13 of the Act, a person who employs a domestic worker shall enter into a written contract of employment as set out in the First Schedule with that domestic worker. For ease of reference, Section 13 of Act 651 is reproduced below: 

Subject to the terms and conditions of a contract of employment between an employer and a worker, the employer shall within two months after the commencement of the employment furnish the worker with written statement of the particulars of the main terms of the contract of employment in the form set out in Schedule 1 to this Act signed by the employer and the worker. 


Regulation 3 further states what the content of such a contract of employment should be. It states that the contract shall provide for the following: 

  1. the emoluments that the domestic worker is entitled to;
  2. the frequency of the payment of wages;
  3. the mode of payment of wages;
  4. whether lodging and meals are to be provided;
  5. the hours of work;
  6. the rest periods;
  7. overtime work;
  8. the holiday period;
  9. the leave period;
  10. the required responsibilities of the domestic worker;
  11. the minimum qualification or skill of the worker who carries out the work;
  12. the training or skills development to be provided by the employer;
  13. health care including requirements for registration with a Health Insurance Scheme;
  14. pre-employment and post-employment medical examination to be undertaken;
  15. the background checks required to be conducted; and
  16. referees and guarantors to be contacted.

And where the domestic worker or the employer is unable to read or write, or requires assistance in the execution of the contract, section 3 of the Illiterates Protection Act, 1912 (CAP 262) shall apply. This section sets out the procedure to follow when executing a written document with an illiterate person. It provides that a person writing a letter or any other document for or at the request of an illiterate person, whether gratuitously or for a reward, shall

(a) clearly and correctly read over and explain the letter or document or cause it to be read over and explained to the illiterate person,

(b) cause the illiterate person to sign or make a mark at the foot of the letter or the other document or to touch the pen with which the mark is made at the foot of the letter or the other document,

(c) clearly write the full name and address of the writer on the letter or the other document as writer of it, and

(d) state on the letter or the other document the nature and amount of the reward charged or taken by the writer for writing the letter or the other document, and shall give a receipt for the reward and keep a counterfoil of the receipt to be produced at the request of any of the officers named in section 5.


After both parties have signed the contract, regulation 4 states that the employer bears the task of depositing same with the appropriate District Labour Officer within one month of entering into the contract. And where the contract is amended after it has been deposited, the employer shall deposit the amended contract within 2 weeks of the amendment.


2.2 Wages and Benefits

Regulation 6 deals with issues of remuneration, which is one of the main reasons the L.I was made. It sets the basic wage for domestic workers in accordance with the prevailing minimum wage. This regulation states that an employer of a domestic worker shall not pay the domestic worker a remuneration that is less than the National Daily Minimum Wage. The National Tripartite Committee (NTC), which is the body established under Act 651[3] to determine the national minimum wage, has recently increased the National Daily Minimum Wage from ¢11.82 to ¢12.53[4], representing a 6% increase from 2020’s minimum wage. This is provision is imperative; it is mandatory and no employer can legally decide to pay a domestic worker below this amount per day.

Where a domestic worker works after the agreed hours of work, the additional hours of work shall be regarded as overtime and the employer shall pay for the overtime work. Also, a domestic worker shall not be required to do overtime work unless the contract of employment has a fixed rate for overtime work as agreed to by the parties. Impliedly, where overtime work is not provided for under the contract and the employer finds the need to engage the domestic worker overtime work, the contract must be amended and the amended copy deposited with the District Labour Officer within two weeks of the amendment.

 According to regulation 7, an employer of a domestic worker shall not make any statutory deduction from the wages of the domestic worker that is inconsistent with 69 and 70 of the Act[5] and the provisions of the National Pensions Act, 2008 (Act 766). These provisions enumerate deductions that are prohibited and the ones permitted. Deductions which are prohibited are discount, interest or similar charge on account of an advance of remuneration made to a worker in anticipation of regular period of payment of remuneration; pecuniary penalty for any cause whatsoever; deduction of whatever nature, unless it is permitted by law. Some deductions which are permitted by law include any amount paid to the worker in error, as remuneration, in excess of what the worker is legitimately entitled to, from the employer; any amount due from the worker in respect of contributions to any provident, pension, or other fund or scheme agreed to by the worker; any amount paid to the worker in error, as remuneration, in excess of what the worker is legitimately entitled to, from the employer. However, these permitted deductions must be done with the consent of the domestic worker. 


Further, in accordance with the Act 766[6] the employer of a domestic worker may register a domestic worker as an informal employee and ensure that provision is made for the domestic worker to pay periodic contributions accordance with Act 766. An employer of a domestic worker shall deduct the portion of the Social Security contribution of the domestic worker concerned from the wages of the domestic worker and pay the amount to the appropriate or scheme.


2.3 Living standard

As already stated above, some domestic workers live-in with their employers as long as they work for them, while others only come to their employer’s homes to work when they have to. Regulation 8 provides for how domestic workers living with their employers should be treated. Where a person employs a domestic worker to live-in with that person, that person shall provide the domestic worker with facilities that are necessary to ensure adequate living conditions, including

  1. decent living conditions that guarantee the privacy and safety of the domestic worker;
  2. access to toilet and bath facilities, and
  3. adequate food, if provided.

This provision is to ensure that an employer who agrees to accommodate a domestic worker provides such a worker with the basic necessaries of life so that that he or she is not subjected to inhumane treatment. 

2.4 Rest Periods, Leave Periods and Public Holidays

A domestic worker is entitled to a daily rest period of at least eight consecutive hours. In any undertaking with respect to work, where the normal hours of work are continuous, a domestic worker is to at least thirty (30) minutes rest in the course of work, but the rest forms part of the normal hours of work. here the normal hours of work are in two parts, the rest period shall not be less than thirty (30) minutes and shall not form part of the normal hours of work; and there shall be a rest period of at least twenty-four hours in one week for that domestic worker. 

Its worth noting that a domestic worker is entitled to annual leave in accordance with section 20 of the Act[7]. Per the Act, every worker is entitled to not less than fifteen working days leave with full pay in any calendar year of continuous service. The expression “full pay” means the worker’s normal remuneration, without overtime payment, including the cash equivalent of any remuneration in kind.[8] An employer of a domestic is required to grant the domestic worker leave from work on a statutory public holiday and pay a full daily wage except that where the domestic worker is required to work during a statutory public holiday, the employer shall pay the worker double the amount of the normal wage. This is to make sure that domestic workers are not unnecessarily burdened and given their deserved rest and where the employer wants the domestic worker to work on statutory holidays, he must be prepared to adequately compensate him or her for it.

2.5 Termination of employment

Once the L.I has provided for the employment relationship between the parties should commence, it is only appropriate that it makes provisions for how it terminates. A contract of employment of a domestic worker may be terminated in accordance with

sections 15 and 17 of the Act.[9] Per section 15, a contract of employment may be terminated in any of the following ways:

(a) by mutual agreement between the employer and the worker;

(b) by the worker on grounds of ill-treatment or sexual harassment;

(c) by the employer on the death of the worker before the expiration of the period of employment;

(d) by the employer if the worker is found on medical examination to be unfit for employment;

(e) by the employer because of the inability of the worker to carry

out his or her work due to

(i) sickness or accident; or

(ii) the incompetence of the worker; or

(iii) proven misconduct of the worker.

Notice of termination of employment shall be given in accordance with section 17 of the Act. In this section, a contract of employment may be terminated at anytime by either party giving to the other party,

(a) in the case of a contract of three years or more, one month’s

notice or one month’s pay in lieu of notice;

(b) notice or two weeks’ pay in lieu of notice; or

(c) in the case of contract from week to week, seven days’

notice.

2.6 Enforcement of contract of employment

A domestic worker and an employer of that domestic worker may resolve any contractual dispute in accordance with the Alternative Dispute Resolution Act, 2010 (Act 798), but the choice of an alternative dispute procedure shall not derogate from the right of the domestic worker to enforce a contract of employment by due process of law.


3.0 Criticism

The Minister for Labour must be commended for recognizing the importance of domestic workers in our society and for his efforts at legislating an instrument to regularize and regulate their activities. The L.I contains some essential provisions whose aim is to protect the dignity of domestic workers. This notwithstanding, the L.I falls short in a number of places. The first issue to be considered is the failure to make provisions for middlemen or agents. There is an increase in demand for the services of domestic workers due to a number of factors. Demographic factors such as ageing populations, decline in welfare provision, the increasing participation of women in the labour force, and the challenges of balancing work and family life in urban areas have contributed greatly to the increasing demand for domestic workers.[10] 

Due to this increase in demand, agencies are springing up in every nook and cranny of urban areas and are recruiting domestic work workers for onward employment. The law is silent on the activities of these agencies or middlemen. By reason of this apparent silence, there is no mention of how this agency relationship should be treated. Who then becomes the employer of the domestic worker? In the event of default, for instance, where certain mandatory requirements in the contract are not adhered to, who does the domestic worker proceed against for remedy? The Agent or the person who for whom the work is done? These are some of the questions that were left unanswered in the L.I.

Another issue is that the L.I does not have teeth to bite. Where employers fail to comply with the mandatory provisions in the law, there should be consequent sanctions to be meted out to them to ensure future compliance and deterrence. For instance, the L.I makes it mandatory for an employer to deposit a copy of the employment contract with the appropriate District Labour Officer within one month of signing it. It does not say what happens if an employer fails to do so. Hence, an employer could enter into a contract with a domestic worker and not deposit it and nothing will happen to him. Where some clauses in the contract are onerous and inconsistent with the L.I, it stays between the employer and the worker. Also, where the employer fails or refuses to allow the domestic worker to take the statutory rests, there is no punishment prescribed for this non-compliance. This makes the law toothless and incapable of biting defaulters.


4.0 Recommendations

In order that law does not become irrelevant despite the noble intention behind its passage, there must be an amendment to reflect the current state of affairs in the domestic workers employment space. There must be clear provisions on what punishment domestic workers will suffer if they flout any of the mandatory requirements in the law. It could be a fine, a term of imprisonment or both, to ensure maximum compliance. As stated earlier, the law does not take cognizance of the presence of agents and middlemen. The amendment should define the relationship between these actors and what their rights and responsibilities are in such an employment contract. This will give confidence to domestic workers and their employers, knowing that their interests are protected under the law and there may be remedies for them when any of the parties is injured.

Many people are still unaware of the existence of the law, especially the persons for whom it was made, that is domestic workers and their employers. The Ministry responsible for labour should educate the public on this law. The ministry could do this in the form of advertisement on national media platforms or do this through the local government ministry. If this is not done, the purpose for making the law will be defeated as persons it was made for cannot take advantage of it. 



References