All workers have certain rights under the Constitution of South Africa and additional labour regulations. This is a summary of farmworkers’ rights in South Africa.
1. Notice period and termination of employment
If you wish to end an employment contract, you must give notice in writing (unless you are illiterate). If your employer wishes to end your employment contract, he/she must give notice to you in writing. Notice must be given as follows:
· one week in advance – if employed for 6 months or less
· four weeks in advance – if employed for more than 6 months
The employer must verbally explain the notice to the farmworker if he/she is not able to understand it in written form.
2. What rights do I have after notice is given?
After notice is given, farmworkers have the following rights:
· If you live in accommodation provided by your employer, then your employer must give you one month’s notice to leave the accommodation or allow you to remain in the home until the contract of employment ends.
· You are allowed to keep livestock on the premises for a period of one month or until the contract of employment could lawfully have been terminated.
· If you have standing crops on the land, you’re 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 employee an agreed amount for the crops.
· All money that is owing to you (for example, wages, allowances, pro rata leave, paid time-off not taken, and so on) must be paid to you if you leave the farm.
3. When can a farmworker’s contract of employment be terminated?
A farmworker’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. (You can find full instructions by here: http://www.ccma.org.za/Display.asp?L1=32&L2=9.) This should be done within thirty days of being dismissed from the farm.
If a farmworker 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 farmworker then the employer can terminate his/her services for what is called “Incapacity.”
4. Minimum wage
All farmers have to pay their employees a minimum wage. Wage rates are adjusted every year.
The minimum rate for the period 28 February 2011 to 29 February 2012 is R7.51 per hour and R1 375.94 per month. The minimum rate for the period 1 March 2012 to 29 February 2013 is previous years’ wage + CPI+1%.
You can find up-to-date minimum wage information here: http://www.mywage.co.za/main/minimum-wages/farm-worker-wages.
5. Maximum hours of work
Normal work hours: Ordinarily, employers cannot require or permit employees to work more than 45 hours in any week. Employers cannot require or permit employees to work more than 8 hours in any day if you work more than 5 days in a week, or 9 hours in any day if an employee works for 5 days or less in a week.
Overtime: An employer may not require or permit an employee to work:
- overtime except by an agreement
- more than ten hours overtime a week
- more than 3 hours overtime any day
- Employees may collectively agree to increase overtime to fifteen hours per week for up to two months in any period of 12 months. Overtime must be paid at 1.5 times the employee’s normal wage or an employee may agree to receive paid time off.
- Employees may agree in writing to work up to 3 hours in a day without receiving overtime pay, but only if this agreement does not require or permit employees to work more than 45 ordinary hours in any week, more than ten hours’ overtime in any week, or more than five days in any week.
- Employees may collectively agree to permit the hours of work to be averaged over a period of up to four months. If so, employees still may not work more than an average of 45 ordinary hours in a week over the agreed period and they may not work more than an average of five hours’ overtime in a week over the agreed period.
6. Rest periods
- An employee must have a meal interval of 60 minutes after five hours work.
- You may reduce the meal interval to 30 minutes by signing a written agreement with your employer. If you work fewer than six hours on a day, you may dispense the meal interval altogether by signing a written agreement with your employer.
Daily and weekly rest periods
- A farmworker 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.
- Night work means work performed after 8 p.m. and before 4.a.m.
- Night work can only happen if the farmworker 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. Employees who perform night work must be informed of any health and safety hazards and of the right to undergo a medical examination.
Work on Sundays
- Farmworkers should be paid for work on Sundays as follows:
Hours worked Payment One hour or less Double the wage for one hour Longer than one hour, but less than 2 hours Double the wage for the time worked 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 farmworker who does not live on the farm who works on a Sunday must be regarded as having worked at least two hours on that day.
7. Public Holidays
Farmworker 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 farmworker 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 he/she must be paid double the normal daily wage.
8. Annual leave
Full time farmworkers 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.
9. 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 –
- for more than two days in a row, or
- on more than two occasions during an 8-week period
and does not produce a medical certificate stating that he/she was too sick or injured to work.
10. Maternity leave
A farmworker 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.
11. 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 born or
- when the employee’s child is sick or
- 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
12. Deductions from the remuneration
An employer is not allowed to deduct any monies from the employee’s wages without his/her written permission.
There can be a deduction of no more than 10% for food and 10% for accommodation where the food and accommodation is provided free of charge by the employer and on a regular and consistent basis. There can be an agreed charge for electricity, water or other services. In addition, the house must have a proper roof which is waterproof. It must have glass windows that can be opened, electricity, safe water on tap inside the house (or not further than 100 meters from the house) and a flush toilet or pit latrine inside or close to the house.
Farmers may not deduct money from wages for training, provision of tools or equipment or uniforms.
Farmers may only deduct money from wages if this is for payment to-
- a funeral/pension fund
- a financial institution
- trade union fees
13. Prohibition of employment
No one under the age of 15 can be required or permitted to work.
14. General administrative requirements
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 and paralegaladvice.org.za for more information.)
Farmworkers are also covered by the Labour Relations Act, and have a right to belong to unions and to organise with other employees.