Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997)
Sectoral Determination 13 : Farm Worker Sector, South Africa
|Notice period and termination of employment
In terms of the Sectoral Determination, any party to an employment contract must give written notice, except when an illiterate farm worker gives it, as follows:
|One week, if employed for six months or less
|Four weeks if employed for more than six months.
Notice must be explained orally by or on behalf of the employer to a farm worker if he/she is not able to understand it.
The employer is required to provide the farm worker who resides in accommodation that is situated on the premises of the employer or that is supplied by the employer, with accommodation for a period of one month, or if it is a longer period, until the contract of employment could lawfully have been terminated.
The farm worker is entitled 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 entitled 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 monies due to the farm worker for any wages, allowance or other payments that have not been paid, paid time-off not taken and pro-rata leave must be paid.
|Procedure for termination of employment
Whilst the contract of employment makes provision for termination of employment, it must be understood that the services of an employee may not be terminated unless a valid and fair reason exists and fair procedure is followed. If an employee is dismissed without a valid reason or without a fair procedure, the employee may refer the matter to the CCMA for assistance.
Pro-rata leave and severance pay is payable.
In the event of a farm worker being unable to return to work due to disability, the employer must investigate the nature of the disability and ascertain whether or not it is permanent or temporary. The employer must try to accommodate the employee as far as possible for example, amending or adapting their duties to suit the disability. However, in the event of it not being possible for the employer to adapt the farm worker's duties and/or to find alternatives due to the disability, then such employer may terminate the services of the farm worker.
The Labour Relations Act, 66 of 1995 sets out the procedures to be followed at the termination of services in the Code of Good Practice, in Schedule 8.
There is a prescribed minimum wage. Additional payments (such as for overtime or work on Sundays or Public Holidays) are calculated from the total wage as indicated in clause 5.3 of the contract. The total remuneration is the total of the money received by the employee and the payment in kind, which may not be more than 10% each of the wage for food and accommodation.
Sectoral Determination 13: Farm workers Sector, South Africa does not regulate this and is therefore open to negotiation between the parties.
5. Hours of work
|Normal hours (excluding overtime)
A farm worker may not be made to:
|work more than 45 ordinary hours a week;
|work more than nine hours per day for a five day work week; and
|work more than eight hours a day for a six day work week.
|Extension of ordinary hours of work
By written agreement, ordinary hours of work may be extended by not more than five hours per week for a period of not more than four months and be reduced by the same number of hours during a period of the same duration in the same twelve month period.
The employer must pay the farm worker the wage he/she would have received for his/her normal hours worked.
Extended hours not reduced must be paid as overtime on termination.
A farm worker may not work more than 15 hours overtime per week but may not work more than 12 hours on any day, including overtime.
Overtime must be paid at 1.5 times the employee’s normal wage or an employee may agree to receive paid time off.
|Daily and weekly rest periods
|A daily rest period of 12 consecutive hours and a weekly rest period of 36 consecutive hours, which must include Sunday, unless otherwise agreed, must be allowed.
|The daily rest period may by agreement be reduced to 10 hours for an employee who lives on the premises whose meal interval lasts for at least three hours.
|The weekly rest period may by agreement be extended to 60 consecutive hours every two weeks or be reduced to eight hours in any week if the rest period in the following week is extended equivalently.
|Night work means work performed after 20:00 and before 04:00.
|Only worked if agreed to in writing and must be compensated by an allowance of at least 10% the ordinary daily wage and if transport is available.
A farm worker is entitled to a one-hour break for a meal after not more than five hours work. Such interval may be reduced to 30 minutes, by agreement between the parties, When a second meal interval is required because of overtime worked, it may be reduced to not less than 15 minutes. If required or permitted to work during this period, remuneration must be paid.
|Work on Sundays
Must be paid as follows:
Time worked on a Sunday
One hour or less
Double the wage for one hour
More than one hour but not more than two hours
Double the ordinary wage for time worked
More than two hours but not more than five hours
The ordinary daily wage
More than five hours
The greater of double the wage payable in respect of time worked (excluding overtime) or double the ordinary daily wage
A farm worker who does not reside on the farm who works on a Sunday must be regarded as having worked at least two hours on that day.
The days mentioned in the Public Holidays Act must be granted but the parties can agree to further public holidays. Work on a public holiday is entirely voluntary and a farm worker may not be forced to work on such public holiday.
The official public holidays are:
New Years Day
Human Rights Day
National Woman’s Day
Day of Reconciliation
Day of Goodwill
Any other day declared an official public holiday from time to time must also be granted.
These days can be exchanged for any other day by agreement.
If the employee works on a public holiday he/she shall be paid double the normal day’s wage.
Annual leave may not be less than three weeks per year for full-time workers or by agreement, one day for every 17 days worked or one hour for every 17 hours worked.
The leave must be granted not later than six months after completion of the period of 12 consecutive months of employment. The leave may not be granted concurrent with any period of sick leave, nor with a period of notice of termination of the contract of employment.
During every sick leave cycle of 36 months an employee is 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 six months of employment, an employee is entitled to one day’s paid sick leave for every 26 days worked.
The employer is not required to pay an employee if the employee has been absent from work for more than two consecutive days or on more than two occasions during an eight-week period and, on request by the employer, does not produce a medical certificate stating that the employee was unable to work for the duration of the employee’s absence on account of sickness or injury.
The employee is entitled to at least four consecutive months’ maternity leave. The employer is not obliged to pay the farm worker for the period for which she is off work due to her pregnancy. However the parties may agree that the farm worker will receive part of or her entire salary/wage for the time that she is off due to pregnancy.
|Family responsibility leave
Employees employed for longer than four months and for at least four days a week are entitled to take three days’ paid family responsibility leave during each leave cycle when the employee’s child is born, or when the employee’s child is sick or in the event of the death of the employee’s spouse or life partner or parent, adoptive parent, grandparent, child, adopted child, grandchild or sibling.
|Deductions from the remuneration
The Sectoral Determination prohibits an employer from deducting any monies from the farm worker’s wages without his/her written permission.
A deduction of not more than 10% each of the wage may be deducted for food and accommodation provided on a consistent and regular basis and provided the house has a roof that is durable and waterproof, has a glass window that can be opened, electricity and water on tap is available inside the house and a flush toilet or pit latrine is available insider or in close proximity to the house.
There are certain other issues which are not regulated by the Sectoral Determination such as probationary periods, right of entry to the employer’s premises, afternoons off, weekends off and pension schemes, medical aid schemes, training school fees, funeral benefits and savings account. However the aforementioned may be negotiated between the parties and included in the contract of employment.
|Prohibition of Employment
The Sectoral Determination prohibits employment of any person under the age of 15 and it is therefore important for an employer to verify the age of the farm worker by requesting a copy of the identity document or birth certificate.
|Other conditions of employment
There is no provision, which prevents any other conditions of employment being included in a contract of employment but any provision, which sets conditions, which are less favorable than those set by the Determination, would be invalid.
These guidelines are not meant to be a complete summary of the Sectoral Determination and/or legal advice. Should there be any doubt as to rights and/or obligations in terms of the Act or terms of any clause of the suggested Contract of Employment, such queries can be directed to the local offices of the Department of Labour, that will gladly assist.