Shezi is employed by a sub-contracting labour broking company. A labour broker (‘temporary employment service’) is someone who supplies labour to the farmer to assist with the picking or pruning requirements of the farm. The company has hired her services out to a farmer where she works as a picker. After two weeks of working on the farm, Shezi has not been paid for any of the overtime she has worked. When she asks the farmer for her overtime money, he tells her he agreed to pay a flat rate to the sub-contractor and he does not have to pay any overtime.

He tells her to go to the sub-contractor. She goes to the sub-contractor who tells her that the overtime has got nothing to do with him – she must get payment from the farmer.

What Does the Law Say?

Shezi is entitled to be paid overtime in terms of the Basic Conditions of Employment Act (BCEA). Shezi is employed by the Labour Broker but the law says if the labour Broker does not comply with the BCEA, Shezi can claim the unpaid monies form either the labour broker or the farmer. She can choose to claim this either from the farmer or from the labour broker. The farmer must obviously pay this overtime – he can either pay this to Shezi or to the sub-contractor who must pay it to Shezi. If Shezi claims the money from the labour broker he must pay her and then he can claim the money from the farmer by reporting him to the Department of Labour.

What Can You Do?

You can write a letter to the farmer and the labour broker setting out Shezi’s right to overtime pay in terms of the BCEA. If the farmer and the labour broker refuse to pay then Shezi can report either the labour broker r or the farmer to the Department of Labour. If Shezi makes a claim against the labour broker then the labour broker may pay Shezi and make a claim against the farmer.