The employment conditions of farm workers are regulated by Sectoral Determination 13 (SD13) and the Labour Relations Act (LRA). This is a summary of the provisions contained in SD13.

(See the website: www.labour.gov.za and click on Sectoral Determination 13 for the full version of the Sectoral Determination).

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 farm worker if they are not able to understand it. If the farm worker 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 worker 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 farm worker 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 worker an agreed amount for the crops.

All money that is owing to the farm worker 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.

PROCEDURE FOR TERMINATING EMPLOYMENT

A farm worker’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 done within thirty days of being dismissed from the farm. If a farm worker 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 farm worker then the employer can terminate their 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.

WAGE/REMUNERATION/PAYMENT

All farmers have to pay their employees a minimum wage. Wage rates are normally adjusted every year. The current minimum wage is R27.58 per hour.

Farmers who can prove that they cannot afford the minimum wage can apply to the Department of Employment and 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.

TRANSPORT ALLOWANCE

The Sectoral Determination does not regulate transport so it is open to negotiation between the parties. However, the allowance cannot exceed 10% of the employee’s remuneration.

HOURS OF WORK

NORMAL HOURS (EXCLUDING OVERTIME)

A farm worker cannot work more than:

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

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. A

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.

Farm workers 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 Employment and Labour of this agreement so that a ‘Variation Order’ is made by the Department of Employment and 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 worker the wage they would have received for their normal hours worked. If hours have been extended and not reduced at a later stage, then the hours must be paid as overtime.

OVERTIME

A farm worker may not work more than:

• 15 hours overtime per week, and
• 12 hours spread over any day, including overtime

Overtime is paid at one and a half times 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.

DAILY AND WEEKLY REST PERIODS

A farm worker 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.

NIGHT WORK

• Night work means work performed after 8 p.m. and before 4.a.m.
• Night work can only happen if the farm worker 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.

MEAL INTERVALS

A farm worker 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 their meal interval, then they must be paid for this.

WORK ON SUNDAYS

Farm workers should be paid for work on Sundays as follows:

• One hour or less: Double the wage for one hour
• Longer than one hour but less than 2 hours: Double the wage
• 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 farm worker who does not live on the farm and works on a Sunday must be regarded as having worked at least two hours on that day.

PUBLIC HOLIDAYS

Farm workers 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 farm worker 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 which would ordinarily have been a normal working day, they must be paid double the normal daily wage. If on a Saturday, then normal daily wage plus the normal hourly rate for each hour worked on that public holiday.

ANNUAL LEAVE

Full-time farm workers 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.

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 and does not produce a medical certificate stating that they were too sick or injured to work:

• For more than two days in a row
• On more than two occasions during an 8-week period

MATERNITY LEAVE

A farm worker 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.

PARENTAL LEAVE

In terms of Section 25A of the BCEA, an employee who is a parent of a child will be entitled to 10 consecutive days’ unpaid parental leave during each leave cycle. Parental leave can start on the day that the child is born, or, if the child is adopted, the date the adoption order is granted or the adoptive child is placed in the care of the parents, whichever comes first.

The 10 consecutive days of parental leave are calendar days, not working days. An employee must notify the employer in writing of the date on which they intend to start their parental leave and return to work after parental leave. This notification must at least be given 1 month before the birth of the child or whenever it is practical to do so. An employee who contributes to the UIF may apply for parental benefits from the Department of Employment and Labour.

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 sick
• 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

Employees need not take a whole day off and can request half days off or any shorter period. Again, the granting of this leave is at the employer’s discretion.

ADOPTION LEAVE

Adoption leave applies to the adoption of a child who is below the age of 2 years. A single adoptive parent is entitled to 10 consecutive weeks’ unpaid adoption leave. If there are two adoptive parents, only one would be entitled to 10 weeks’ adoption leave. However, the other adoptive parent would be entitled to 10 consecutive days of normal parental leave. It is up to the adoptive parents to decide who takes adoption leave and who takes normal parental leave.

Leave starts on the day that the adoption order is granted, or the day that a court places the child in the care of an adoptive parent. An employee who contributes to the Unemployment Insurance Fund can apply for adoption benefits from the Department of Employment and Labour.

COMMISSIONING PARENTAL LEAVE

Commissioning parental leave refers to surrogate motherhood. In terms of Section 25© of the BCEA, the parent who will primarily be responsible for looking after the child (primary commissioning parent) will be entitled to 10 consecutive week’s unpaid commissioning parental leave. If there are two commissioning parents, they can choose: if one parent takes commissioning parental leave, the other can take normal parental leave. The other parent would be entitled to 10 consecutive days’ normal unpaid parental leave. An employee who contributes to the UIF may apply for Commissioning Parental benefits from the Department of Employment and Labour.

DEDUCTIONS FROM REMUNERATION

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

Section 8 of SD13 states that an employer may not make any deductions from a farm employee’s wages, except:

• A deduction up to 10% of the employee’s wage for food
• A deduction up to 10% from the employee’s wage for accommodation where the farm employee lives
• A deduction up to 10% to repay a loan made by the employer to the farm employee
• A deduction of an amount which the employee has asked the employer to pay to a third party (for example, a pension fund or medical aid fund)
• A deduction of any amount which the employer is required to make by law or in terms of a court order (such as a garnishee order) or arbitration award

An employer can make a deduction in respect of accommodation and food if:

• the food or accommodation is provided free of charge to the farm employee
• the food or accommodation is provided consistently as part of a condition of employment
• no additional deduction is made by the employer for food, accommodation, water and electricity

So, an employer can deduct 10% for accommodation, 10% for food and 10% for any loan – a maximum of 30%. The employer can deduct an additional 25% of the employee’s wages to pay for “loss and damage’ but only if the correct procedures have been followed.

Where 10% is deducted for accommodation, no further deductions can be made for electricity.

Communal living – If more than 2 employees live together in accommodation, the maximum deduction that an employer can make is 25% of the minimum wage for an individual employee. For example, if the minimum wage is R4,953, the maximum deduction that can be made in total from the employees is 25% of the minimum wage which is R1,238 per month. If 3 employees are living together in a house this amounts to R412 per employee per month. This amount should not be higher than 10% of the employee’s wage. If an employee is paid the minimum wage of R4,953, then 10% of the employee’s wage is R495. The amount of R412 is therefore lower than 10% of the employee’s wage and would be a legal deduction for accommodation.

OTHER ISSUES

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

• Probationary periods
• Right of entry to the employer’s premises
• Afternoons / weekends off
• Pension schemes
• Medical aid Training/school fees
• Funeral benefits/saving accounts

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

PROHIBITION OF EMPLOYMENT

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

OTHER CONDITIONS OF EMPLOYMENT

There is no provision which prevents other conditions of employment from being included in a contract of employment but any new conditions may not be less favourable than those set by the Sectoral Determination.

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:
Farm workers 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 Employment and Labour or the Commission for Conciliation, Mediation and Arbitration.

A union which has signed up 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 and to have paid stop orders implemented in respect of that employer. If this is a problem, the matter can be referred to the CCMA in terms of Section 12 of the Labour Relations Act. Also, a thirty per cent representation of a farm entitles the trade union to ‘stop order facilities’ on the farm in terms of Section 13 of the Labour Relations Act.

EXAMPLE: FARM WORKER – CONTRACT OF EMPLOYMENT

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

Address of employer…………………………………………………………

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.

Meal 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 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 clauses 5.1 and 5.2 of this contract.

5. WAGE

5.1 The employee’s wage shall be paid either in cash or electronically into a bank account 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 ………………………of every year.

6. TERMINATION OF EMPLOYMENT

Either party can terminate this agreement with one week’s 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 employee 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

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. During the first 6 months of employment, the employee will be entitled to one day’s paid sick leave for every 26 days worked. The employee is to notify the employer as soon as possible in case of his/her absence from work through illness. 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 they work on at least 4 days a week and provided the employee has been employed for longer than four months.

13. PARENTAL LEAVE

The employee will be entitled to 10 consecutive days (calendar days) unpaid parental leave during each cycle, starting on the day that the child is born, or if the child is adopted, the date the adoption order is granted or the adoptive child is placed in the care of the parents, whichever comes first.

14. ACCOMMODATION

(Tick the appropriate box)

14.1 The employee will be provided with accommodation for as long as the employee is in the service of the employer, which shall form part of his/her remuneration package.

14.2 The accommodation may only be occupied by the employee and their immediate family, unless by prior arrangement with the employer

14.3 Prior permission should be obtained for visitors who wish to stay the night. However, where members of the employee’s direct family are visiting, such permission will not be necessary.

15. CLOTHING

(delete whichever is not applicable)

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

16. OTHER CONDITIONS OF EMPLOYMENT OR BENEFITS

……………………………………………………………………. …………………………………………………………………….

17. GENERAL

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

EMPLOYER ………………………………………….. Date: ……………………..

EMPLOYEE……………………………………………..Date: …………………… (Signed in acknowledgement of receipt)