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Domestic workers’ cooperatives:

Organisational and regulatory possibilities

THIERRY GALANI TIEMENI*

DARCY DU TOIT****

1 Introduction

Trade unions, in the current South African context, are facing many challenges – including

schisms, infightings and a very convoluted implication into the political arena1 - that leaves

less scope for an optimal performance of these unions in their quintessential purposes of

promoting and defending workers’ rights and interests.2 Finding solutions to the challenges

faced by marginalised and non-unionised workers unsurprisingly appears not to be a pressing

priority for current trade unions leaders. It thus becomes essential, for precarious and

vulnerable workers, to personally invest their efforts into finding alternative approaches to

the resolution of their organisational issues, for the purpose of integrating the industrial

relation processes, initiate and participate to collective bargaining and ultimately improve

their terms and conditions of employment.

This article analyses the concept of worker cooperatives as a possible form of organisation in

sectors, such as the domestic work industry, where traditional trade unions are ill-

functioning.3 The domestic work sector in South Africa and to a certain extent globally, is

characterised by the failure of trade unions in effectively organising and/or representing

domestic workers. 4 The aim of this paper is to demonstrate the role cooperatives could play

* LL.D. (UWC); Research Assistant, Social Law Project, University of the Western Cape.**** B.A., LL.B. (UCT); LL.D. (Leiden); Emeritus Professor, Faculty of Law, University of the Western Cape.1 See Marais H South Africa pushed to the limit: The political economy of change (2010)187-189 & 453-455. 2 See Theron J, Godfrey S & Fergus E ‘Organisational and collective bargaining rights through the lens of Marikana (2015) 36 ILJ 849-869. This article examines the failure of the existing South African system of labour relations and highlights employees' loss of faith in trade unions. 3 See Ally S ‘Domestic Worker Unionisation in Post-Apartheid South Africa: Demobilisation and Depoliticisation by the Democratic State’ (2008) 35(1) Politikon: South African Journal of Political Studies 1-21. 4See Bonner C & Spooner D ‘Organizing in the Informal Economy: A Challenge for Trade Unions’ (2011) 2 (11) International Politics and Society 87-105.In South Africa, the effective unionisation of the domestic workers sector is a process that has faced many challenges and obstacles; SADWU (South African Domestic Workers Union), the original primary union in the sector, was disbanded in 1996-1998 due to financial and organisational constraints. Current trade unions organising domestic workers are fairly recent - the South African Domestic Services and Allied Workers Union

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in empowering domestic workers by presenting them with an opportunity to collectively

campaign for the improvement of their working conditions and the promotion of their labour

and employment rights. Workers cooperatives could also serve as a platform that increase the

capacity of domestic workers to overcome decent work deficits by collectively negotiating

better terms and conditions of employment

Creating and sustaining a network of effective domestic workers cooperatives is an essential

yet only initial step of the process leading to the active involvement of domestic worker into

the industrial relations arena. This paper also discusses the scope for domestic workers

cooperatives to potentially evolve into becoming trade unions that could be registered in

terms of the LRA.

Domestic workers cooperatives operating independently may not be able to provide

sustained, optimal and effective employee representation; yet as a unique structure bringing

together a category of workers traditionally facing organisational challenges, cooperatives

can empower domestic workers, to become engaged in formal entities that build social

cohesion, create links to relevant trade unions and strengthen domestic workers ability to

eventually become active trade union members.5

2 The precarious nature of domestic work in SA: Issues and challenges

2.1 The domestic worker: a ‘vulnerable’ and ‘precarious’ worker in SA

Precarious or vulnerable workers are individuals employed (or self-employed) in unregulated

or inefficiently regulated sectors and industries characterised by poor, or the absence of,

industry organisation, employment insecurity, marginalisation, and often questionable

working conditions.6 Occupations falling into this definition include domestic workers, home

care employees, street vendors and waste pickers amongst other professions. 7

(SADSAWU) was created in 2000 - and struggling to replicate SADWU’s past successes. See Ally S ‘Domestic Worker Unionisation in Post-Apartheid South Africa: Demobilisation and Depoliticisation by the Democratic State’ (2008) 35(1) Politikon: South African Journal of Political Studies 6.5 Vanqa-Mgijima N, Wiid Y & Du Toit D Organising for empowerment in Du Toit D (ed) Exploited, undervalued - and essential: Domestic workers and the realisation of their rights (2013) 265-267.6 Du Toit D Situating domestic work in a changing global labour market in Du Toit D (ed) Exploited, undervalued - and essential: Domestic workers and the realisation of their rights (2013) 2. See also ILO From precarious work to decent work: Outcome Document to the Workers’ Symposium on Policies and Regulations to combat Precarious Employment (2012) 27-29.7 See ILO From precarious work to decent work: Outcome Document to the Workers’ Symposium on Policies and Regulations to combat Precarious Employment (2012) 27-29 for a discussion of the scope and definition of precarious work.

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Domestic workers, in South Africa are amongst the most vulnerable categories of precarious

workers: First, because most domestic workers are women, the domestic work sector being

one of the major employers of women in South Africa.8 Secondly because, despite the fact

that the South African domestic work sector has witnessed exponential growth, domestic

workers have remained one of the most undervalued, underpaid and under protected category

of workers, neglected by legislation and its enforcement.9 Finally, because many domestic

workers, in particular migrant workers, are informally employed, without contracts, are

facing isolation and potential restrictions in movement, with little or no knowledge of the

protection employment legislation offers them.10

2.2 The case for cooperatives in the domestic work sector

Cooperatives for domestic workers are considered as a form of social enterprise. But its

significance extends beyond the immediate purposes of such enterprises. The starting point is

the extremely limited extent of organisation in the domestic sector. Trade unionism is taken

as a key point of reference since this has been the traditional and, arguably, most viable form

of organisation for workers in most sectors. In the domestic sector, however, the industrial

trade union model, as provided for in the Labour Relations Act (LRA),11 has been singularly

ineffective. No other form of organisation remotely suited to the domestic sector is provided

for by labour legislation. The result is a practical absence of grassroots organisation of any

kind and, at the same time, the urgent need for such organisation to address the numerous

shortcomings in the protection and implementation of the rights of domestic workers.12 A

central question, therefore, is to what extent cooperatives are capable of providing a more

effective organisational vehicle for this purpose.

2.2.1 Theoretical framework of domestic workers cooperatives

(a) What is a worker cooperative?

The International Co-operative Alliance provides the following definitions of cooperatives:

8 Domestic workers in employment in South Africa amount to five per cent of the total South African workforce. 96 per cent of the domestic workers are women and domestic workers account for almost 15 per cent of the total female South African workforce (this makes the sector one of the biggest employers of women in South Africa). See Statistics South Africa Quarterly Labour Force Survey: Quarter 2, 2014.9 See Declaration of the Domestic Workers Summit Held on the 27-28 August 2011 available at: http://www.dwrp.org.za/images/stories/DWRP_Resources/declaration.pdf 10 Fish JN Rights across borders: policies, protections and practices for migrant domestic workers in South Africa in Du Toit D (ed) Exploited, undervalued - and essential: Domestic workers and the realisation of their rights (2013) 239-240. 11 Act 66 of 1995.12 All forms of worker organisation envisaged by the LRA are based on registered trade unions which, in turn, are conceptualised as being based in medium to large workplaces: see esp chapters III and V of the Act.

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‘A co-operative is an autonomous association of persons united voluntarily to meet their

common economic, social, and cultural needs and aspirations through a jointly owned and

democratically-controlled enterprise.’13

The ICA establishes that cooperatives are ideally based on the values of self-help, self-

responsibility, democracy, equality, equity and solidarity.14 Cooperatives ought to be guided

by a framework of principles that constitutes the cooperatives principles 15 and this despites

the possible differences /dissimilarities between cooperatives

Several forms and models of cooperatives indeed exists across the globes and Tchami suggest

that a key criterion one should consider in order to differentiate cooperatives from each

other is the ‘principal objective of the members of a Cooperative’16 Applying this criteria,

cooperatives can be divided as ‘Either the members enjoy services to which they have so far

not had access, or their goal is to get a job. In the first case, we mean service cooperatives and

in the second worker cooperatives.’17

Tchami furthers distinguishes between this two type of cooperatives and establishes that

cooperatives offering a service to members entail financial cooperatives such as credit unions

and insurance cooperatives, agricultural or farmers’ cooperatives, consumer cooperatives,

housing cooperatives, public service provision cooperatives and shared services cooperatives

or support services cooperatives.18 The main purpose of worker cooperatives, however, is to

is to create jobs for members, thus this category entails producer cooperatives where

members are both co-owners and employees of a cooperative the purpose of which is to

produce goods and/or services; and labour cooperatives whose members sell their labour and

skills to other enterprises or to private individual, the latter model is the one mostly suitable

to domestic workers for the purpose discussed in this paper.19

Domestic workers cooperatives, in South Africa, ought to have a dual purpose that not only

13 Definition provided by the International Co-operative Alliance at http://ica.coop/en/what-co-operative . 14 provided by the International Co-operative Alliance at http://ica.coop/en/what-co-operative15 See International Co-operative Alliance: Statement on the Co-operative Identity (1995). Derived from the Rochdale Principles, the cooperatives principles where established in 1995 by the ICA and entails the following seven cardinal principles the structure and functioning of each and all cooperatives ought to be based upon: Voluntary and Open Membership; Democratic Member Control, Member Economic Participation, Autonomy and Independence; Education, Training and Information; Co-operation among Co-operatives and Concern for Community.16 Tchami G Handbook on Cooperatives for use by Workers’ Organizations (2007) International Labour Office: Geneva.17 Tchami G Handbook on Cooperatives for use by Workers’ Organizations (2007) International Labour Office: Geneva. 18 Tchami G Handbook on Cooperatives for use by Workers’ Organizations (2007) International Labour Office: Geneva. 19 Tchami G Handbook on Cooperatives for use by Workers’ Organizations (2007) International Labour Office: Geneva.

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creates employment opportunities for domestic workers, but primarily focuses on curbing the

incidence of informal domestic work and organising domestic workers for the ultimate

purpose of achieving decent work in the domestic work sector.

Similarly to other precarious workers cooperatives, domestic workers cooperatives’ members

originally share the following characteristic: they are atypical and non-standard workers,

often without a formal contract, working private homes where their working conditions and

often their living conditions is mostly determined and regulated by the will of their individual

employers.

(b) Domestic workers cooperatives in practice

Domestic workers cooperatives are not a novelty and several successful examples have been

observed across the world, notably in North and South America, but also Asia and Europe.20

Successful examples of domestic workers cooperatives include the Jamaican Household

Workers Association,21 Si Se Puede! , Ecomundo Cleaning, Co-operative Home Care

Associates in the USA and FCSDSQ and Care Connection in Canada.

Considering the size of the domestic sector in South Africa, as well as the existence of a legal

framework that is mostly conducive to grassroots organisation that empowers economically

disadvantaged or legally deprived individual, a deceiving observation is thus that the

potential of domestic workers cooperatives is clearly still untapped in South Africa. Domestic

workers cooperatives are scarce, almost inexistent. The only prominent organisation that is

seemingly active in the domestic work sector is the Rainbow Housing Co-operative.22 it is

however to be noted that the Rainbow Housing Co-operative is not the ideal domestic

20 See ILO Mapping of Domestic Worker Social and Solidarity Economy Organizations (2014) ILO: Geneva. See also ILO Cooperating out of isolation: The case of Migrant domestic workers in Kuwait, Lebanon, and Jordan (2014) ILO: Geneva. 21 The Jamaican Household Workers Association was founded in 1991 and has over 1900 members. It worked closely with government, employers and trade unions to ensure that their members are provided with fair wages and ethical employment practices. In 2013 it changed its status to that of a formally registered trade union.22 The Rainbow Housing Co-operative formed in 1996 to address the housing needs of low-income workers residing on the Atlantic Seaboard side of Cape Town. Its objectives were to save collectively on a monthly basis; to lobby key stakeholders for resources; to seek information, knowledge and skills to empower and mobilise members continuously; to ensure that the members’ constitutional right of access to adequate housing is fulfilled and will result in the restoration of their dignity; to acquire, develop, hold and maintain immovable property on behalf of the members; and to make housing units available for use by the members in accordance with the seven co-operative principles. Constraints and challenges have worked against the long term success of Rainbow. See Tonkin A ‘The plight of domestic workers: The elusiveness of access to adequate housing’ (2010) 14 Law, Democracy & Development 354-369.

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workers cooperative as envisioned by this paper , firstly because it does not focus on

domestic workers or precarious workers as a target group but rather on low income workers

in general. Secondly, because the objectives of the Rainbow Housing Co-operative does not

entails the achievement of decent work conditions but rather focuses on providing a specific

service to the target group: namely access to housing opportunities .

2.2.2 Legal and policy framework of workers cooperatives

The legal and policy framework of cooperatives in South Africa is to be examined with the

two questions in mind:

What is the role played by the law as and enabling or disabling element for the

creation of sustainable domestic workers cooperatives?

Is the South African legal framework conducive to the effective creation and the

optimal performance of domestic workers cooperatives?

(a) National and international legal and policy framework

The legal and policy framework providing for and regulating domestic workers cooperatives

in South Africa includes:

(i) Various policy documents as well as institutional publications

Notably the Decent Work Country Programme; the ILO Promotion of Co-operatives

Recommendation, 2002 (No 193) and the DTI Integrated Strategy on the Development and

Promotion of Co-operatives (2011).

These instruments may be described as ‘soft law’ considering that the Decent Work Country

Programme and DTI Integrated Strategy are merely policy guidelines, whereas the ILO

Promotion of Co-operatives Recommendation has not yet been ratified by any country. The

relevance of these instruments is emphasised by the fact that ‘soft law’ is often persuasive in

suggesting how the legislation should be interpreted.

(ii) International legal instruments

Even though only containing few provisions effectively relevant to domestic workers’

cooperatives, the ILO Domestic Workers Convention, 2011 (No 189) supplemented by the

ILO Domestic Workers Recommendation, 2011 (No 201) have been ratified by, thus are

binding on, South Africa.

Before taking effect in South Africa, the requirement and obligations derived from these

international instruments ought to be translated into national law, and are also subject to

interpretation.

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(iii) National legal instruments

The Co-operatives Act 14 of 2005 and the Co-operative Regulations, 2007 are binding legal

instruments providing for workers cooperatives law susceptible to directly apply to domestic

worker cooperatives.

These two instruments therefore form the focus of this overview. In outlining the main

provisions of the Act and the Regulations, a distinction will be drawn between provisions that

are (potentially) enabling and those that are (potentially) disabling from the perspective of a

possible domestic workers’ cooperative.

(b) Is the legal/policy framework enabling or disabling?

The purposes of the Co-operatives Act 14 of 2005 are entirely enabling (see s 2). The main

purposes are to –

• promote the development of sustainable co-operatives that comply with co-operative

principles;

• encourage persons and groups who subscribe to values of self-reliance and self-help, and

who choose to work together in democratically controlled enterprises, to register co-

operatives in terms of the Act; and

• enable such co-operative enterprises to register and acquire a legal status separate from

their members.

In addition, the Act is aimed at ensuring ensure the design and implementation of co-

operative development support programmes and measures by all the agencies of national

departments “including but not limited to Khula, NEF, NPI, SEDA, IDC, SAQI, SABS,

CSIR, PIC, DBSA, SALGA and SETAs”.

Regardless of whether any or all of these purposes are (adequately) provided for in the Act,

the effect is that all provisions of the Act must be interpreted in such a way as to give

maximum effect to the stated purposes. For example, the duties of government agencies in

supporting cooperative development must be interpreted broadly rather than narrowly.

The purposes of the Co-operatives Act 14 of 2005 are therefore of a highly enabling nature,

yet the optimal realisation of the objectives sets by the act is effectively constrained by the

degree of administrative regulation it imposes. This may not be incompatible with the

purposes of the act, but it does require a relatively sophisticated level of administration which

would be disabling for a cooperative lacking access to such services.

More particularly when considering that, as with companies and trade unions, the Act creates

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a system of oversight and supervision by the state intended to ensure that cooperatives

function in terms of their constitutions and in the interests of their members. This takes place

under the auspices of the Department of Trade and Industry and is exercised by a Registrar of

Cooperatives (ss 78-79).

This oversight system is highly formal and the administrative requirements appear to have

been formulated with relatively sophisticated commercial enterprises in mind, rather than

organisations of marginalised workers. This indicated by the fact that, since 2008, the

functions of the Registrar have been exercised by the Companies and Intellectual Property

Commission (CIPC) established in terms of s 185 of the Companies Act 71 of 2008, which

serves primarily to monitor compliance with the Companies Act and this maybe suggest that

the Act views cooperatives as a subset of the corporate world and that are to appraised

according to commercial standards rather than their social objectives.

The legal and policy framework is broadly conducive to the creation of workers

cooperatives, yet it has been observed that only few (or none) such cooperatives are currently

active and are effective in the South African domestic work industry. Factors explaining

such a lack of interests toward the experimentation of domestic workers cooperatives in

South Africa however are still unclear. 23

3 Domestics workers at the crossroads

Are domestic workers’ cooperatives, if effectively structured, organised and managed, likely

to provide a sustainable solution to organisational challenges in the domestic work sector?

Could workers cooperatives be the panacea to the issues and challenges currently faced by

domestic workers? Faced by the reality of generally deplorable working conditions; and

constrained by the many organisational challenges previously discussed; domestic workers

are in fact at a crossroad where they, in conjunction with all relevant stakeholders, have to

23 The DTI has investigated factors explaining the low survival rate of new cooperatives and have found that due to a number of challenges across the co-operative chain newly formed as well as previously existing cooperatives, often remain vulnerable, very weak and dependent on high and sustained levels of support.….see Department of Trade and Industry Integrated Strategy on the Development and Promotion of Co-operatives 2012 – 2020 (2012) 34. According to DTI, there are several factors contributing to the low survival rate. These include:• The absence of a dedicated agency to support co-operatives on a focused basis;• Poor mentorship;• Minimum investment dedicated to co-operatives;• A sense that government and all its enterprise development agencies are neglecting co-operatives; and• Co-operatives have been established primarily to access free money such as the Co-operative Incentive Grant instead of contributing to building a co-operative movement. Leading, amongst others, to tension and conflict amongst members over the use and allocation of money and assets.

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take action and decide how to engage with the issues and concerns affecting the domestic

work sector.

3.1 To cooperate or not to cooperate

Effectively organising and representing domestic workers is the intrinsic issue at the core of

challenges affecting the domestic work sector; thus the urgency to successfully organise

domestic workers in sustainable workers cooperatives. Organising rights are indeed crucial

for domestic workers, as they provide a better opportunity for domestic workers to more

efficiently engage with employers and other stakeholders, such as the State/government, in

order to collectively negotiate, bargain or lobby for the implementation or enforcement of

better terms and conditions of employment in the domestic work industry working

conditions.24

The most traditional approaches might be utilised in order to achieve the implementation of

decent work in the domestic work sector are either a reliance on the State intervention that

requires the provision of a more efficient legal framework for the regulation of domestic

work activities at national level, or the reliance on trade union to achieve their traditional

purpose of effectively organising and representing domestic workers, while engaging

employers’ associations in collective bargaining processes aimed at improving labour

rights and working conditions across the domestic work sector. The industrialisation of the

domestic work sector is also a de facto approach that has been experienced, with mixed

results in various national contexts.

3.1.1 A stricter regulation of domestic work?

The recourse to a stringent regulation of domestic work could well be presented as a potential

solution to the challenges faced by domestic workers in South Africa. Such approach requires

that the state, in an effort to curb the incidence of precarious working conditions in the

domestic work sector, adopts a comprehensive legal framework that effectively provide for

the achievement of decent work objectives in the domestic work sector. 25

24 See Boris E & Nadasen P ‘Domestic workers organise!’ (2008) 11Working USA: The Journal of Labor and Society 425-426. 25For a discussion of the relevance and potential of States’ regulation of domestic work for the purpose of promoting fundamental right at work in the domestic work industry see Blackett A "Promoting Domestic Workers' Human Dignity through Specific Regulation," in Fauve-Chamoux A (ed) Domestic Service and the Formation of European Identity: Understanding the Globalization of Domestic Work, 16th-21st Centuries (2005) Peter Lang: Bern

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The post-apartheid SA government attempted, without success, to develop a framework of

legislation the purpose of which was to formalise and regulate the domestic workers sector in

South Africa. 26 Such approach has nonetheless been implemented with relative success in

various national contexts, 27 and international law is currently evolving toward creating an

international legal framework that regulates, and protect domestic workers activities at global

level. 28

3.1.2 Impact of trade unions activities in the domestic work sector

As principal actors and stakeholders of the industrial relations process, trade unions

necessarily have an important role to play in the task of instillation - and the subsequent

implementation - of Decent Work principles in the domestic work sector. It is however

extremely difficult to create trade unions targeting domestic workers, especially considering

that domestic workers are often confined in private home, unlike other workers who share a

same workplace and therefore have a sense of collectiveness. There is also a latent lack of

awareness amongst domestic works of the activities of trade unions thus the opportunities

created by joining trade union are not evident for the average domestic workers.29

From a South African perspective, and possibly in certain other countries, a central question

therefore refers to the extent to which cooperatives of domestic workers could help to fill

such an organisational hiatus by (a) creating decent jobs by providing “domestic” (including

householding and caring) services in private homes and elsewhere on terms

established/negotiated by cooperatives on behalf of their members and (b) providing

members with the services they need in order to address the decent work deficit and run the

cooperative optimally, from skills development to child care, and (c) the inclusion of

domestic workers in existing collective bargaining processes and structures , and possibly

their involvement into the activities of relevant bargaining councils. The “primary social

26 See Ally S From Servants to Workers: South African Domestic Workers and the Democratic State (2009) Cornell University Press: Ithaca. 27 ‘[…] the growing involvement of the state and the market in the regulation and supply of domestic services offers an avenue for delivering decent work for domestic workers […] These systems help regularize casual and part-time domestic work but are less effective in stabilizing hours of work and labour earnings, countering the isolation of domestic workers, and providing them with opportunities to further upgrade their skills and competencies.’ Tomei M ‘Decent Work for Domestic Workers: Reflections on Recent Approaches to Tackle Informality’ (2011) 23(1) Canadian Journal of Women and the Law 185-186. 28 Blackett A "Promoting Domestic Workers' Human Dignity through Specific Regulation," in Fauve-Chamoux A (ed) Domestic Service and the Formation of European Identity: Understanding the Globalization of Domestic Work, 16th-21st Centuries (2005) 253. 29 See Bonner C & Spooner D ‘Organizing in the Informal Economy: A Challenge for Trade Unions’(2011) 2 (11) International Politics and Society 87-105

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purpose”, over and above these three specific objectives, would be the empowerment of

workers (cooperative members) as citizens.

3.1.3 The industrialisation of domestic work?

Corollary to governmental regulation of the domestic work sector, the industrialisation of the

domestic sector refers to the formalisation of the domestic work sector via the provision for

the creation and functioning of professional companies the purposes of which is to recruit ,

train and place domestic works into workplace:

Industrialisation in the domestic work sector is described as ‘the creation of licensed

enterprises that provide domestic services to client30 either households or corporation.

Despite the fact that it does not result from a concerted government policy action, the

domestic work sector in South Africa, has seen a rise, in recent decades, in employment

agencies, temporary employment services (TES) and labour brokers providing domestics

services to private households and business alike, on a temporary or permanent contractual

basis. 31These domestic workers are often contracted with the TES or labour broker and do

not have an immediate working relationship with the effective employer and this often result

in employment insecurity and lack of job stability.32

The industrialisation of the domestic work sector has had mixed results in Belgium and

France, as it has managed to generally improve the working conditions of domestic workers,

despites the subsistence of ramping issues affecting domestic workers which could not be

effectively addressed by this practice.33

In South Africa, such mercantilisation of domestic work has not has the effect of curbing

informality nor did it contribute to the improvement of working conditions in the domestic

work industry, and section 198 of the LRA is thus criticized for ‘legitimizing the

commoditization of labour’.34 Major trade unions and labour federations have spearheaded a

call for the bans or a stricter regulation of TES in South Africa35 and recent amendments of

30 Tomei M ‘Decent Work for Domestic Workers: Reflections on Recent Approaches to Tackle Informality’ (2011) 23(1) Canadian Journal of Women and the Law 186. 31 Provided for by Section 198 of the LRA32 The courts have had to take strong stances against the use, by employer, of TES for the core purpose of evading the statutory protection afforded to vulnerable workers. See Dyokhwe v De Kock No & Others (2012) 33 ILJ 2401 (LC); and in neighbouring Namibia see Africa Personnel Services (Pty) Ltd v Government of the Republic of Namibia (2011) 32 ILJ 205 (NmS).33 Tomei highlights the ‘low quality of jobs’ in the domestic sector as an overall issue that subsist despite the labour protection gains realized by the industrialization of domestic work in various European countries. See Tomei M ‘Decent Work for Domestic Workers: Reflections on Recent Approaches to Tackle Informality’ (2011) 23(1) Canadian Journal of Women and the Law 208.34 Cohen T ‘Debunking the Legal Fiction Dyokhwe v De Kock No & Others (2012) 33 ILJ 2318-2328.35 Holdcroft J ‘Implications for union work of the trend towards precarization of work’ (2013) 5 (1) International Journal of Labour Research 52-53.

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Section 198 of the LRA improves the statutory protection of vulnerable workers, including

domestic workers. 36

3.2 The role of domestic workers’ cooperatives

Creating and providing for the effectiveness of sustainable workers cooperatives is a practical

avenue needs to be explored for the purpose of finding lasting solutions to organisational

issues faced by domestic workers, while leveraging the existing national and international

legal and policy frameworks for the purpose of protecting and promoting domestic workers’

labour and employment rights.

A relevant perspective into the interest of domestic workers cooperatives relates to their

potential as a vehicle for the amelioration of domestics workers terms and conditions of

employment. When positioned as alternatives to traditional trade union in the industrial

relation process,37 workers cooperatives may provide domestic workers with a suitable

platform allowing them to collectively and coherently negotiate better term and conditions of

employment for their members, while optimising domestic workers ability to participate to

collective bargaining structures and processes.38

Domestic workers cooperatives can contribute to the amelioration of domestic workers

working conditions via the following actions. First, by better organising domestic workers

into well structured, self-driven and efficient organisations aimed at the coordination of

domestic workers labour and industrial relation activities; with a focus on the inclusion (and

the representation) of domestic workers into collective bargaining structures and processes.

Secondly, by directly engaging with employers or employers’ associations for the purpose of

negotiating , and ensuring the implementation, of better terms and conditions of

employment in the domestic work sector. Finally by providing domestic workers with an

efficient legal assistance structure the purpose of which is to inform domestic workers on

their rights and obligations as employees, and provide legal assistance and possibly legal

representation to workers at relevant stage of their employment or during labour and

employments disputes. 39 36 See Du Toit D et al ‘Critical update of new/amended laws applicable to domestic workers and other precarious workers’ (2013) Annual Legislative Review, paper produced by the Precarious Workers Research Project & Social Law Project of the University of the Western Cape; for a discussion of recent amendments to the legislative framework relevant to domestic workers and other precarious workers. 37 Considering the difficulties encountered by trade unions in the task of organization of the domestic work sector as discussed in Tanzer Z Domestic Workers and Socio-Economic Rights: A South African Case Study (2013) 12-14. 38 ILO Decent work for domestic workers (2010) Report IV (1) of the International Labour Conference, 99th Session, 2010 at 85-86.39 See ILO Domestic workers across the world: Global and regional statistics and the extent of legal protection (2013) International Labour Office: Geneva at 71-72 for various examples, worldwide, of domestic workers

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3.2.1 Domestic workers cooperatives and the regulation of domestic work

The scope for the development of cooperatives of domestic workers as a more effective

organisational vehicle is to be considered as an alternative to the traditional role of the State

or the industrial workplace model. 40 The creation of a network of sustainable and effective

domestic workers cooperatives could offer domestic workers the opportunity to contribute to

the regulation of the domestic work sector; creating a path for domestic workers to enter the

industrial relation arena. 41

Provided that domestic workers employers have also created relevant organisational

structures allowing negotiation to take place,42 cooperatives of domestic workers could

contribute to the improvement of members’ working conditions and employment rights by

directly negotiating with employers. Such negotiation could have three essential purposes:

Firstly to provide a platform for domestic workers to comprehensively represent

themselves in the industrial relation process

Secondly, to offer an opportunity to domestic workers to collectively, thus more

effectively, negotiate better term and conditions of employment;

Finally, accords and agreement reached at the conclusion of such negotiation have the

potential to act as regulatory instruments formalising terms and conditions of

employment in the domestic work sector, thus providing domestic workers with a

framework of established principles regulating their relationship with employers. It is

even conceivable that such collective agreements negotiated by cooperatives (in

collaboration with trade union) could possibly evolve into becoming applicable to the

whole domestic work industry and not only members of a specific cooperative. Such

negotiated instruments could also possibly evolve in order to be included (by the

relevant authorities) in the official legal framework regulating domestic work.43

If effectively implemented, and successful, such an approach could also have a boomerang

effect that furthers the interest of domestic workers cooperatives as juristic persons by

organisations making strides toward the achievement of the abovementioned objectives. 40 Blackett A ‘Introduction: Regulating Decent Work for Domestic Workers’ (2011) 23 Canadian Journal of Women and the Law 20, with reference to Leah F. Vosko Managing the Margins: Gender, Citizenship, and theInternational Regulation of Precarious Employment (Oxford University Press, 2010).41 See Smith PR ‘Organizing the unorganizable: private paid household workers and approaches to employee representation’ (2000)79(1) North Carolina Law Review 1-50. 42 ILO Domestic workers across the world: Global and regional statistics and the extent of legal protection (2013) 73.

43 See ILO Effective Protection for Domestic Workers: A guide to designing labour laws (2012) 26-28.

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creating an incentive for unorganised domestic workers to joins or create new domestic

workers cooperatives.

3.2.2 Domestic workers cooperatives and industrial relations

A cooperative of domestic workers that succeeds in overcoming organisational hurdles in

the domestic work sector could potentially make significant gains in terms of worker

organisation and empowerment. A worker cooperative of domestic workers could in effect be

a ‘closed shop’ to the extent that it builds its membership (also through the services it offers

to members) and compel employers to negotiate terms and conditions of employment. 44This

may encourage employers to set up organisations for the purpose and lay a basis for

collective bargaining on a sectoral scale.

Since trade unions are not precluded from providing services to members, a worker

cooperative of domestic workers may be able to register as a trade union, or to support its

members in joining an allied trade union or, in the absence of such a union, to create a trade

union consisting of members, for the purpose of entering into collective agreements and

performing other trade union functions.

Alternatively, an existing trade union or unions could launch a co-operative of this nature.

The advantage of joining would be gaining access to employment via the co-operative as well

as access to the services it offers such as education and training, child care, access to housing

etc (either directly or via allied service co-operatives).

3.2.3 Domestic worker cooperative, temporary employment services and labour

brokers

Domestic worker cooperative could make inroads on the territory currently occupied by

domestic worker TESs. It should be able to undercut the latter (having no comparable profit

margins built into fees to clients) and offer a more attractive environment to workers.

Considering that a as social and solidarity economy organisation, a domestic worker

cooperative will not have the purpose to realise profits but rather to create opportunities for

domestic workers and contribute to the achievement of decent work in the domestic work

sector. Functioning as a labour placement agency, domestic workers cooperative will:

Recruits and train domestic workers

44 See Smith PR ‘Organizing the unorganizable: private paid household workers and approaches to employee representation’ (2000)79(1) North Carolina Law Review 1-50.

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Create awareness amongst domestic workers concerning their labour and

employment rights

‘Cut out the middleman’ an directly contracts with employers thus the prospects of

better financial rewards for domestic workers

Negotiate standardised contract of employment that effectively protects domestics

workers labour and employment rights

Ensure that terms and conditions of employment are respected and implemented by

employer

Assist and protect domestic workers

And provide them with legal assistance, legal advice and possibly legal

representation when possible.

4 The way forward?

Domestic workers’ cooperatives should be thought of as structures created for the purpose of

supplementing trade union activities, cooperating with trade unions, and ultimately joining or

evolving into trade unions.

This is especially important when considering that domestic workers cooperatives are not

optimally equipped to independently enter the industrial relation processes, and are not

sufficiently provided for and protected by the legal framework regulating industrial relations

and collective bargaining.

The legal framework in fact often limits domestic workers cooperatives abilities to

competently represent domestic workers. For example, unlike registered trade unions,

domestic workers cooperative are not allowed to represent workers in arbitration proceedings

before the CCMA.45

Domestic workers cooperatives also will often lack the resources, skills and knowledge base,

organisational experience, access to technical expertise and specialised skills necessary to

efficiently perform as independent structures.

Cooperatives can empower domestic workers, especially those more informal workers that do

not have an official employment relationship, to become engaged in formal cooperative

45 Commission for Conciliation, Mediation and Arbitration. See Rule 25 of the CCMA Rules. See also Tanzer Z Domestic Workers and Socio-Economic Rights: A South African Case Study (2013) 14.

P a g e | 16

enterprises that build social cohesion, including links to relevant trade unions and strengthen

their ability to become active trade union members.

Workers cooperatives present a great potential as a platform allowing precarious workers to

achieve inclusion into the industrial relation arena. It provides them with a platform that

allows domestic workers to become organised, to be represented and to be afforded the

opportunity to collectively thus effectively negotiate for better term and conditions of

employment

However, the focus, and the more foreseeable avenue, is for cooperatives to work toward

joining / becoming trade union as this could allow them more visibility and afford them more

powers, access to resources and possibility to benefits from a SA legal framework that

comprehensively protects workers.

However one needs to ask the following questions should it not be envisaged to reform the

legal framework such as to provide cooperative with more tool allowing them to effectively

and optimally perform these task, independently from trade unions.

This recommendation could well be justified by the current situation of trade union, are

characterised by infighting and a complex relationship with political parties that is potentially

prejudicial to the interest of workers.

Thus is there a need for legal reform allowing cooperatives to perform a broader range of

services for precarious workers not serviced by existing trade union: such as CCMA

representation, and the ability to join/create bargaining councils, and negotiate collective

agreements.46

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