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Chapter 6 - Labour Law

Summary of the sectoral determination for farmworkers

The employment conditions of farmworkers are regulated by Sectoral Determination 8 and the Labour Relations Act. This is a summary of the provisions contained in the Sectoral Determination.

See the website: www.labour.gov.za and click on the appropriate Sectoral Determination for more information

1. Notice period and termination of employment

Any party to an employment contract must give written notice, except when an illiterate employee gives it, as follows:

• one week - if employed for 6 months or less
  
• four weeks - if employed for more than 6 months
  

Notice must be explained verbally by or on behalf of the employer to a farmworker if he/she is not able to understand it.

If the farmworker lives in accommodation provided by the employer then the employer must give him/her one month’s notice to leave the accommodation or allow the employee to remain in the home until the contract of employment ends.

The farm employee is allowed to keep livestock on the premises for a period of one month or until the contract of employment could lawfully have been terminated. The farmworker who has standing crops on the land is allowed to tend to those crops, harvest and remove them within a reasonable time after they become ready for harvesting unless the employer pays the farm employee an agreed amount for the crops.

All money that is owing to the farmworker for example, wages, allowances, pro rata leave, paid time-off not taken, and so on must be paid to the employee if the employee leaves the farm.

2. Procedure for terminating employment

A farmworker’s contract of employment may not be terminated unless a valid and fair reason exists and a fair procedure is followed. If an employee is dismissed without a valid reason or without a fair procedure, the employee can refer the case to the CCMA. This should be dome within thirty days of being dismissed from the farm.

If a farmworker cannot return to work because of a disability, the employer must investigate the nature of the disability and decide whether or not it is permanent or temporary. The employer must try to change or adapt the duties of the employee to accommodate the employee as far as possible. But, if it is not possible for the employer to change or adapt the duties of the farmworker then the employer can terminate his/her services for what is called “Incapacity.”

The Labour Relations Act sets out the procedures that must be followed when a person’s services are terminated.

3. Wage/remuneration/payment

All farmers have to pay their employees a minimum wage. Wage rates are adjusted every year.

The minimum rate for the period 28 February 2011 to 29 February 2012 is R7.51 per hour and R1 375.94 per month.

Farmers who can prove that they cannot afford the minimum wage can apply to the Department of Labour for a variation or exemption from this requirement. The Department will consider variations only where the farmer can give good financial reasons for this.

Additional payments (such as for overtime or work on Sundays or Public holidays) are calculated from the total remuneration.

4. Transport allowance

The Sectoral Determination does not regulate transport so it is open to negotiation between the parties.

5. Hours of work

(a) Normal hours (excluding overtime)

A farmworker cannot work more than:

• 45 hours per week
  
• 9 hours per day for a five day working week
  
• 8 hours a day for a six day working week
  

(b) Extension of ordinary hours of work

Ordinary hours of work can be extended by written agreement but by no more than 5 hours per week for a period of up to four months. The ordinary hours of work should be reduced by the same number of hours during a quiet period in the same twelve month period.

Averaging of working hours during season time

Averaging means employees can collectively agree to work shorter or longer hours than the Sectoral Determination allows. Any agreement to work longer hours means employees must get the same number of extra hours off at a later time. Any agreement regarding longer or shorter working hours must be in writing and should be done with the support of a trade union where possible.

Farmworkers can agree to work up to 50 hours a week for their ordinary wages but this can only go on for four months. However, if the parties want to extend this arrangement, they can agree in writing to do this and they must then notify the Department of Labour of this agreement so that a ‘Variation Order’ is made by the Department of Labour. In return, normal working hours must be reduced by the same amount (in other words to 40 hours) during the quiet periods.

The employer must pay the farm employee the wage he/she would have received for his/her normal hours worked.

If hours have been extended and not reduced at a later stage, then the hours must be paid as overtime.

(c) Overtime

A farmworker may not work –

• more than 15 hours overtime per week, and
  
• more than 12 hours spread-over on any day, including overtime.

Overtime is paid at one and a half time the employee’s normal wage or an employee may agree to take paid time off on the basis of one and a half hours off for every overtime hour worked.

(d) Daily and weekly rest periods

A farmworker is entitled to a daily rest period of 12 consecutive hours (hours in a row) and a weekly rest period of 36 consecutive hours, which must include Sunday, unless otherwise agreed;

The daily rest period can be reduced to 10 hours if the parties agree and if the employee lives on the premises and takes a meal interval that lasts for at least 3 hours.

The weekly rest period can by agreement be extended to 60 consecutive hours every two weeks or be reduced to 8 hours in any week if the rest period in the following week is also extended.

(e) Night work

Night work means work performed after 8 p.m. and before 4.a.m.
Night work can only happen if the farmworker has agreed to this in writing. The employee must be compensated for night work by an allowance of at least 10% of the ordinary daily wage.

6. Meal intervals

A farmworker is entitled to a one-hour break for a meal after five hours work of continuous work. The interval may be reduced to 30 minutes by agreement. When a second meal interval is required because of overtime worked, it may be reduced to not less than 15 minutes. If an employee has to work through his or her meal interval, then he/ she must be paid for this.

7. Work on Sundays

Farmworkers should be paid for work on Sundays as follows:

Hours worked	Payment
One hour or less	Double the wage for one hour
Longer than one hour, but less than 2 hours	Double the wage for the time worked
Longer than two hours, but less than 5 hours	The normal daily wage
Longer than 5 hours	Either:
	- double the wage for the hours worked, or - double the daily wage whichever is greater

A farmworker who does not live on the farm who works on a Sunday must be regarded as having worked at least two hours on that day.

8. Public Holidays

Farmworker are entitled to all the public holidays in the Public Holidays Act but the parties can agree to other public holidays. Work on a public holiday is voluntary which means a farmworker may not be forced to work.

The official public holidays are:

New Years day
Human rights day
Good Friday
Family Day
Freedom Day
Employees Day
Youth Day
National Woman’s Day
Heritage Day
Day of Reconciliation
Christmas Day
Day of Goodwill

Where the government declares an official public holiday at any other time then this must be granted. The days can be exchanged for any other day by agreement.

If the employee works on a public holiday he/she must be paid double the normal daily wage.

9. Annual leave

Full time farmworkers are entitled to 3 weeks leave per year. If the parties agree they can take leave as follows: 1 day for every 17 days worked or one hour for every 17 hours worked.

The leave must be given not later than 6 months after completing 12 months of employment with the same employer. The leave may not be given at the same time as sick leave, nor at the same time as a period of notice to terminate work.

10. Sick leave

During the first six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.

During a sick leave cycle of 36 months, an employee is entitled to paid sick leave that is equal to the number of days the employee would normally work during a period of 6 weeks.

The employer does not have to pay an employee if the employee has been absent from work –

• for more than two days in a row, or
  
• on more than two occasions during an 8-week period
  

and does not produce a medical certificate stating that he/she was too sick or injured to work.

11. Maternity leave

A farmworker is entitled to up to 4 consecutive months maternity leave. The employer does not have to pay the employee for the period for which she is off work due to her pregnancy. However the parties may agree that the employee will receive part of her whole wage for the time that she is off and the mother is able to claim from the UIF for maternity leave benefits.

12. Family responsibility leave

Employees who have been employed for longer than 4 months and for at least 4 days a week are entitled to take 3 days paid family responsibility leave during each leave cycle in the following circumstances:

• when the employee’s child is born or
  
• when the employee’s child is sick or
  
• if one of the following people dies: the employee’s husband / wife / life partner / parent /adoptive parent / grandparent/ child/adopted child/ grandchild/ brother or sister
  

13. Deductions from the remuneration

An employer is not allowed to deduct any monies from the employee’s wages without his/her written permission.

There can be a deduction of no more than 10% for food and 10% for accommodation where the food and accommodation is provided free of charge by the employer and on a regular and consistent basis. There can be an agreed charge  for electricity, water or other services. In addition, the house must have a proper roof which is waterproof. It must have glass windows that can be opened, electricity, safe water on tap inside the house (or not further than 100 meters from the house) and a flush toilet or pit latrine inside or close to the house.

Farmers may not deduct money from wages for training, provision of tools or equipment or uniforms.
Farmers may only deduct money from wages if this is for payment to-

• a funeral/pension fund
  
• a financial institution
  
• trade union fees

14. Other issues

Other issues that are not dealt with the Sectoral Determination include:

• probationary periods
  
• right of entry to the employer’s premises
  
• afternoons / weekends off
  
• pension schemes
  
• medial aid
  
• training/school fees
  
• funeral benefits/saving accounts
  

These can all be negotiated between the parties and included in the contract of employment

15. Prohibition of employment

No one under the age of 15 can be required or permitted to work.

16. Other conditions of employment

There is no provision which prevents other conditions of employment being included in a contract of employment but any new conditions may be less favourable than those set by the Sectoral Determination.

17. General administrative requirements

The Sectoral Determination states that farmers must comply with the following administrative processes:

• provide employees with a pay slip which should be kept for a period of 3 years
  
• provide employees with an employment contract
  

(See www.labour.gov.za for more information)

Note: Farmworkers are also covered by the Labour Relations Act, and have a right to belong to unions and to organise with other employees. Union organisers have to negotiate access onto the farms with the farmers. If the farmer refuses, the matter can be taken up with the Department of Labour or the Commission for Conciliation, Mediation and Arbitration. A union which has approximately 30% of employees in an organisation or a farm , as its members, is entitled to have access to the farm or the establishment to hold meetings and to run union business. If this is a problem, the matter can be referred to the CCMA. Also, a thirty percent representation of a farm entitles the tarde union to ‘stop order facilities’ on the farm.

Sample contract of employment for farmworkers

This is a sample contract of employment for a farmworker

Name of employer………
Address of employer …………………..

To

Name of employee ……………………….

1. Commencement of employment

Employment started/will start on ………………………… and continue until terminated in terms of this contract.

2. Place of work

3. Job description

- Job title
- Duties:

4. Hours of work

4.1 Normal working hours will be ……… hours per week, made up as follows:

Monday/Tuesday/Wednesday/ Thursday / Friday ………….. a.m. to ………………p.m.
Mal intervals will be from: ……………..to ……………….
Other breaks:………………………

Saturdays: ………………………….a.m. to ………………………p.m
Meal intervals will be from: ……………..to ……………………..
Other breaks

Sundays: …………………………….a.m. to ………………………p.m.
Meal intervals will be from ………………to ……………………..
Other breaks

4.2 Hours of work will be extended with by not more than 5 hours per week during ……………..and reduced by the same hours during ………………..

4.3 Overtime will be worked as agreed from time to time and will be paid at the rate of one and a half times of the total wage as set out in clause 5.2 of this contract.

5. Wage

5.1 The employees wage shall be paid in cash on the last working day of every week/month and shall be: R………….

5.2 The employee shall be entitled to the following allowances/other cash payments in kind:

5.2.1 Accommodation per week/month to the value of R…………..
5.2.2 Food per week/month to the value of R …………

5.3 The following deductions are agreed upon: R………….
…………………………….. R………….

5.4 The total value of the above remuneration shall be : R………………
(the total of clauses 5.1 to 5.2.2
change or delete clauses as needed)

5.5 The employer shall review the employee’s salary/wage on or before 1 March of every year.

6. Termination of employment

Either party can terminate this agreement with one weeks notice during the first six months of employment and with four weeks notice thereafter. Notice must be given in writing except when it is given by an illiterate employee. In the case where the employee is illiterate notice must be explained orally by or on behalf of the employer.

On giving notice the employer is to provide the employer who resides in accommodation that belongs to the farmer, accommodation for a period of a month. The employer is also obliged to allow the employee who has standing crops on the land a reasonable time to harvest the crop or the farmer may pay the employee an agreed amount for that crop.

7. Sunday work

Any work on Sunday will be by agreement between parties and will be paid according to the Sectoral Determination.

8. Public Holidays

Any work on holidays will be by agreement and will be paid according to the Sectoral Determination.

9. Annual leave

The employee is entitled to three weeks paid leave after every 12 months of continuous service. Such leave is to be taken at times convenient to the employer and the employer may require the employee to take his/her leave at such times as coincide with that of the employer.

10. Sick leave

10.1 During every sick leave cycle of 36 months the employer will be entitled to an amount of paid sick leave equal to the number of days the employee would normally work during a period of six weeks.

10.2 During the first 6 months of employment the employee will be entitled to one day’s paid sick leave for every 26 days worked.
10.3 The employee is to notify the employer as soon as possible in case of his/her absence from work through illness.
10.4 A medical certificate is required if absent for more than 2 consecutive days or if absent on more than two occasions during an 8 week period.

11. Maternity leave
(Tick the applicable clauses in the space provided)

The employee will be entitled to ………………… months maternity leave without pay …………..
OR
The employee will be entitled to …………………. Months maternity leave on ……………….pay

12. Family responsibility leave

The employee will be entitled to three days family responsibility leave during each leave cycle if he/she works on at least 4 days a week and provided the employee has been employed for longer than Four months.

13. Accommodation
(Tick the appropriate box)

13.1 The employee will be provided with accommodation for as long as the employee is in the service of the employer.
13.2 The accommodation may only be occupied by the employee and his/her immediate family, unless by prior arrangement with the employer
13.3 Prior permission should be obtained for visitors who wish to stay the night. However, where members of the employees’ direct family are visiting, such permission will not be necessary.

14. Clothing
(delete whichever is not applicable)

………………sets of uniforms/protective clothing will be supplied to the employee free of charge by the employer and will remain the property of the employer.

……………..sets of boots will be supplied to the employee free of charge by the employer and will remain the property of the employer.

15. Other conditions of employment or benefits

…………………………………………………..

16. General
Any changes to the written contract will only be valid if agreed by both parties.

…………………………………………………….
Employer

Acknowledgement of receipt by employee

……………………………………………

Date:…………………………..