In lieu of employing domestic workers, some homeowners engage the services of house cleaning and/or gardening contractors (i.e. independent contractors) for the purposes of maintaining their properties.

As stated above, the sectoral determination applicable to domestic workers also applies to domestic workers who are “employed as independent contractors” (sic).[i]

The wording of the sectoral determination is imprecise as a person is either an employee or an independent contractor and consequently cannot be ‘employed’ as an independent contractor.

What the sectoral determination appears to envisage is that employees employed by independent contractors / service providers (i.e. gardening services, au pair services, etc.) who render services to third party homeowners are still entitled to the minimum conditions of employment set out in the sectoral determination. The independent contractor remains the employer of the persons performing the service and are liable to fulfil the minimum terms and conditions of employable applicable.

It goes without saying that homeowners who engage the services of truly independent contractors / agencies do not become the employers of the staff of those independent contractors by virtue of having engaged their services.

For example, where a gardening service attends weekly at a home in order to mow the lawn, trim the hedges and wash the windows that is a legitimate service which does not render the homeowner an employer or responsible for the employees performing that service.

A note of caution is necessary here, homeowners will only escape liability if they engage the services of legitimate independent contractors. The Labour Court and CCMA have a long history of setting aside ‘sham’ independent contractor arrangements where a contract is, in substance, an employment agreement and not an independent contractor agreement.[ii]

When engaging the services of an independent contractor, homeowners should therefore ensure that the contractors with whom they engage constitute legitimate contracting operations. The following factors should be considered:

• whether the independent contractor provides the tools of the trade (i.e. cleaning equipment, gardening equipment, personal protective equipment, etc.);

• whether the independent contractor is responsible for supervising the performance of the employees (i.e. independently from the homeowner);

• whether the independent contractor employs more than one employee;

• whether the independent contactor issues invoices before payment;

• whether the independent contractor services more than one household; and

• whether the independent contractor has a valid tax clearance certificate.

Homeowners who engage the services of a single person as a domestic worker and then style that agreement as an “independent contractor” agreement in the hope of avoiding the obligations associated with being an employer are likely to be caught out in due course and may suffer liability as a result of their non-compliance with the law.

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[i] See section 1(1)(b) of Sectoral Determination 7

[ii] See Code of Good Practice: Who is an Employee