You and Your Rights: Farm workers

Summary

  • No worker may be asked to work more than 45 ordinary hours per week, even if a written agreement dictates he or she work as much as 12 hours a day.
  • If a worker lives on the property the daily rest period may be reduced to 10 hours or has a 3-hour meal interval.
  • On Sundays double wage is paid for those who work less than 2 hours or more than 5 hours.
  • Workers must notify employers in writing at least four weeks before maternity leave is needed.
  • Whoever employs a worker through an employment agency is a client of that agency and responsible for recovering any unpaid debt the agency owes to the worker
  • No employed child between the ages of 15 and 18 may work with any agro-chemicals

Your Rights

The Minister of Labour sets minimum terms and conditions of employment (including minimum wages) in certain sectors in South Africa, including farm workers. These are called ‘Ministerial Sectoral Determinations’ and they establish minimum wages, working hours, the number of leave days and termination rules.

The Basic Conditions of Employment Act applies in respect of any matter not covered by the sectoral determinations

Sectoral Determination 13 applies to all workers on a farm including:

  • domestic workers, and
  • security guards.

The determination does NOT apply to workers who are:

  • managers; or
  • covered by another –
    • sectoral determination, or
    • bargaining council agreement.

MININUM WAGES FOR 2010/11

Table 1:Minimum wages for Farm Workers in the Republic of South Africa

 

1 March 2009

To

28 February 2010

1 March 2010

To

28 February 2011

1 March 2011

To

29 February 2012

Hourly

6.31

6.74

7.04

Weekly

284.23

303.84

317.51

Monthly

1231.70

1316.69

1375.94

 

The CPI (excluding owners’ equivalent rent) utilized to determine minimum wage increases is 3.5% as published by Statistic South Africa on 19 January 2011. The Sectoral Determination stipulates that the wage increase will be determined by utilizing the CPI + 1%. Therefore in terms of percentage increase, the new minimum wage as from 1 March 2011 will be 4.5% higher than the current minimum wage.

 

WORKING HOURS

Maximum ‘Ordinary’ Working Hours

Days worked per week

Ordinary hours per day

Maximum allowed per day

Ordinary hours per week

Overtime allowed per week

1 -5 days

9 hours

12 hours

45 hours

15 hours

6 -7 days

8 hours

12 hours

45 hours

15 hour

Compressed working week

An agreement in writing may require an employee to work up to 12 hours a day without receiving overtime pay. However, he or she cannot be asked to work more than 45 ordinary hours in any week and on more than five days in any week.

Working on granted days off

Workers may work on granted days off by agreement. The employer must then pay the worker:

  • double the wage for each hour worked or,
  • the daily wage (if greater)

Meal Breaks

Workers must have a meal break of 60 minutes after 5 hours’ work. During a meal break, a worker might be required to do work, if it cannot be left unattended and no else can do it. They must however be paid for working during their meal breaks.

A written agreement may:

  • reduce meal intervals to 30 minutes
  • dispense with a meal break for workers who work less than 6 hours.

Hours of work to be consecutive

Other than a ship security officer or a cargo security officer, all hours on any day must be consecutive.

Rest Periods

Workers must have a rest period of:

  • 12 hours each day; and
  • 36 consecutive hours each week (must include Sunday, unless otherwise agreed)

Employers and workers may agree in writing to a rest period of at least 60 hours or more every second week.

A workers daily rest period may be reduced to 10 hours if the worker:

  • lives on the property
  • meal interval lasts up to 3 hours

NIGHT WORK

Workers working between 20h00 and 04h00 must:

  • get an allowance of at least 10% of the daily wage
  • have transport available to them.

Employers who require workers to perform night work on a regular basis must inform the worker in writing or orally (if the worker is unable to understand written communication) of any:

  • health and safety hazards associated with the work
  • rights to undergo a medical examination
  • before the worker starts
  • at appropriate intervals while the work continues

A worker’s hours may be changed to day work if:

  • the worker suffers from a health condition associated with the night work
  • it is practical

OVERTIME HOURS

Workers may not work:

  • overtime unless by agreement;
  • more than 15 hours overtime a week;
  • more than 12 hours on any one day.

Pay for Overtime

Employers must pay workers overtime at 1.5 times the normal wage. Alternatively, a worker may agree to receive paid time off. Any overtime worked on a Sunday or public holiday must be paid in accordance with the provisions for Sundays and public holidays.

PUBLIC HOLIDAYS

Working on Public Holidays

Working on a public holiday is by agreement only. Workers must be paid normal wage for public holidays not worked.

Pay for Public Holidays

All workers (including casual workers) must get paid double the hourly wage. Workers must get paid for working Public Holidays on payday.

Exchanging Public Holidays

A public holiday can be exchanged with another day by agreement.

Public Holidays and Annual Leave

A public holiday cannot be counted as annual leave.

SUNDAYS

Pay for Work on Sundays

  • Double wage is paid for 0 – 2 hours and for 5 hours and more.
  • Ordinary wage is paid for 2 hours and more but less than 5 hours.

Paid Time Off

Instead of getting a higher rate, workers may agree to get paid time off in exchange for working on a Sunday.

ANNUAL LEAVE

Number of Leave Days

Workers must get annual leave of at least:

  • 21 consecutive days, or
  • 1 day for every 17 worked, or
  • 1 hour for every 17 worked.

Employers may reduce annual leave for paid days granted off.

Timing of Leave

Both the employer and worker must agree to the timing of leave.  If they cannot agree, the employer makes the final decision.

Leave must be granted not later than 6 months after the end of the annual leave cycle (12 month periods from date of employment).

Payment for Annual Leave

Employers must pay workers their normal wage rate for annual leave. This is to be paid to the worker before the annual leave is taken.

Pay instead of Annual Leave

Employers cannot pay workers instead of granting leave, except on termination of employment.

Annual Leave and Public Holidays

A public holiday cannot be counted as annual leave.

FAMILY RESPONSIBILITY LEAVE

Number of Leave Days

Workers may take 3 days of paid family responsibility leave during each annual leave cycle (12 month periods from date of employment).

Family responsibility leave expires at the end of the annual cycle.

Reasons for Leave

You may take family responsibility leave -

  • when your child is born,
  • when your child is sick,
  • in the event of the death of your spouse or life partner, parent or adoptive parent, grandparent, child or adopted child, grandchild, or sibling.

Proof

Employers may require reasonable proof of the birth, illness or death for which a worker requests leave.

MATERNITY LEAVE

Number of Leave Days

Pregnant workers are entitled to at least 4 consecutive months of maternity leave.

Notification for Leave

Workers need to notify employers in writing when they plan to take maternity leave and when they plan to return to work. This is to be done at least 4 weeks before the leave is required.

Timing of Leave

Workers may take maternity leave one month before their due date, or earlier or later as agreed or required for health reasons.

Safety of Pregnant or Breast Feeding Workers

A worker who is pregnant or breast feeding her child may NOT do work that is unsafe for her or her child.

Number of Leave Days

An employee is entitled to 6 weeks’ paid sick leave in a period of 36 months. However, during the first 6 months of employment, workers are only entitled to one day’s paid sick leave for every 26 days worked.

Pay for Sick Leave

Employers must pay workers their ordinary daily wage for sick leave. This must be paid on their normal payday.

Proof of Illness

An employer may require a medical certificate before paying workers who are absent for more than 2 consecutive days, or who are often absent (more than twice in an 8-week period).

Fees that are paid for medical treatment by an employer may be deducted from the workers’ pay.

PAYSLIPS

Contents of Pay Slips

Employers must give workers the following information in writing when they are paid:

  • Employer’s name and address
  • Worker’s name and occupation
  • Period for which payment is made
  • Total salary or wages
  • Any deductions
  • The actual amount paid
  • If relevant to the calculation of pay:
    • Employee’s pay and overtime rates
    • Number of ordinary and overtime hours worked
    • Number of hours worked on a Sunday or public holiday
    • The total number of ordinary and overtime hours worked in the period of averaging, if a collective agreement to average working time has been concluded.

DEDUCTIONS

Conditions for Deductions

Employers may not deduct for -

  • training;
  • tools and equipment;
  • work clothing; or
  • fines.

Employers may deduct money from a worker’s pay only if:

  • the worker agrees in writing to the deduction of a debt;
  • the deduction is made in terms of a collective agreement, law (e.g. UIF contributions), court order or arbitration award; or
  • the employer overpaid the worker by mistake.

Employers may deduct no more than 10% of a worker’s wage for each of the following:

  • accommodation (subject to certain conditions);
  • food;
  • loans and advances;
  • amounts paid to a third party:
    • holiday;
    • medical aid;
    • insurance;
    • savings;
    • pension fund;
    • any registered trade union in respect of subscriptions;
    • repayments of loans granted for a dwelling and accommodation to - 
      • any bank;
      • building society;
      • insurance business;
      • registered financing institution;
      • local authority.

Conditions for Deductions for Accommodation

Employers may only make deductions for accommodation if;

  • the worker is at least 18 years old;
  • water, electricity and other services are not also deducted;
  • the amount deducted is not more than the cost to the employer;
  • the house has –
    • a roof that is durable and waterproof;
    • glass windows that can be opened;
    • electricity available inside the house (if the infrastructure exists on the farm);
    • water available inside the house (or within 100m from the house);
    • a flush toilet or pit latrine available in, or in close to, it; and
    • a size of not less than 30m².

Where 2 or more workers share accommodation, employers may only deduct a total of 25% of the relevant minimum wage from all workers combined. Equal amounts must be deducted from each worker.

Deductions for Damage or Loss

Deductions for damage or loss caused by the worker may only be made if:

  • the employer has followed a fair procedure and given the worker a chance to show why the deduction should not be made,
  • the worker agrees in writing, and
  • the total deduction is not more than 25% of the worker’s net pay.

Deductions for Benefit Funds

Employers must pay deductions and employer contributions to benefit funds (pension, provident, retirement, medical aid, etc.) to the fund within 7 days.

EMPLOYMENT RECORDS

Employers must keep a record of the following information for each worker:

  • Worker’s name and occupation
  • Time worked
  • Pay received
  • Date of birth (if under 18 years of age)
  • Any other prescribed information

EMPLOYMENT CONTRACTS

At the start of employment, employers must give workers a document containing the following information:

Employer’s and Worker’s Details

  • Employer’s full name;
  • Employer’s address ;
  • Worker’s name;
  • Worker’s occupation, or a brief description of the work.

Employment Details

  • Place/s of work;
  • Date of employment;
  • Working hours and days of work.

Payment Details

  • Salary or wage, or the rate and method of calculating wages;
  • Rate for overtime;
  • Any other cash payments;
  • Any payments in kind and their value;
  • Frequency of payment;
  • Any deductions.

Leave Details

Any leave to which the worker is entitled.

Notice/Contract Period

  • Period of notice required;
  • Period of contract.

This document must be updated if any of the details change. An employer must keep a copy of this document while the worker is employed and for 3 years thereafter.

If a worker is unable to understand the contract the employer is to explain the information in a way that he or she understands

EMPLOYMENT AGENCIES

Workers whose services are provided to a client by an employment agency are employed by the agency. The agency is the employer of the worker.

If an employment agency owes money to a worker and has not paid in 30 days, the client concerned becomes liable. The client is then entitled to recover the amount from the agency.

Employment agencies are liable to comply with the regulations set out in the sectoral determination.

TERMINATION

Notice of Termination

Notice must be given in writing.

Notice Period

Length of time the worker is employed:

Required Notice Period

4 weeks or less

1 week

More than 4 weeks, less than 1 year

2 weeks

1 year or more

4 weeks

A collective agreement may reduce the notice period.

Pay instead of Notice

Employers can decide to waive the notice period but the worker must still be paid out for the notice period.

Payment on Termination

Employers must pay workers all outstanding monies including hours worked on notification of termination.

Workers who have been employed for 4 months or longer are entitled to be paid for any annual leave not taken.

Severance Pay

Retrenched workers (dismissed due to employer’s operational requirements or insolvency) are entitled to one week’s severance pay for every year of service.

Workers who refuse to accept alternative employment with their employer or that with another employer are not entitled to severance pay.

If there is a dispute regarding the right to severance pay, the worker may refer the matter to the CCMA.

Certificate of Service

On termination of employment, workers are entitled to a certificate of service.

The certificate of service must state -

  • worker’s full name;
  • name and address of the employer;
  • date of commencement and termination of employment;
  • title of job and brief description of work;
  • any relevant training received;
  • pay received at termination;
  • reason for termination (if requested by the worker).

Unfair Dismissal

Workers who feel they have been unfairly dismissed should consult the Labour Relations Act or refer the matter to the CCMA or Department of Labour.

CHILD LABOUR

Children Under 15

It is a criminal offence to employ a child under the age of 15.

Children Under 18

Children aged 15 to 18 may not be employed to do work inappropriate for their age or work that places them at risk.

Working Hours

Employers may not require or permit a child who is between the ages of 15 and 18 years to work -

  • between 6pm and 6am
  • 35 hours or more a week
  • with agro-chemicals

Minimum Wages

Employers are required to pay a child who is between the ages of 15 and 18 years, the hourly rate set out in minimum wages.

USEFUL CONTACTS

CCMA (Commission for Conciliation, Mediation and Arbitration)

For case related queries and labour advice, call CCMA Call Centre on: 0861 16 16 16

CCMA National Office

Tel: (011) 377-6650/6600
Fax: (011) 834-7351
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DEPARTMENT OF LABOUR

Tel: 012-309 4000
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Web: www.labour.gov.za