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 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 from 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 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 Employment and Labour. Alternatively, the employee can go to the CCMA in terms of Section 73A of the BCEA to claim unpaid monies in terms of the NMWA.

Section 73A of the BCEA says that an employee can refer a dispute to the CCMA if the employer fails to pay any amount owing to an employee in terms of the BCEA or the NMWA, or in terms of a contract of employment, a Sectoral Determination or a collective agreement. An employee can make an application to the CCMA for conciliation and if the dispute cannot be resolved, it will then automatically be referred to arbitration. No legal representation is allowed in these disputes. This process involves sending the CCMA Referral of Dispute Form 7:11 to the employer and then sending it to the CCMA and ticking Section 73A under ‘Nature of Dispute.’

This provision only applies to employees who earn below the BCEA earning threshold of R21 198 per month. Employees who earn above the threshold can make a claim against an employer for failing to pay them what is owed in either the Labour Court, High Court, Magistrates Court or Small Claims Court depending on the jurisdictional requirements for each of these courts.

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 Employment and Labour or refer a dispute to the CCMA in terms of the Minimum Wage Act. (Section 73A). If Shezi makes a claim against the labour broker then the labour broker may pay Shezi and make a claim against the farmer.