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8: Farm Worker Sector (updated 01/03) No. R. 1499 2
December 2002 BASIC CONDITIONS OF EMPLOYMENT ACT,NO 75 OF 1997
SECTORAL DETERMINATION 8: FARM WORKER SECTOR, SOUTH AFRICA I, Membathisi Mphumzi Shepherd Mdladlana, Minister of Labour, hereby
in terms of section 50 of the Basic Conditions of Employment Act, 1997, make
a Sectoral Determination establishing condition of employment and wages for
employers and employees in the Farm worker sector, South Africa, in the
schedule hereto and determine the second Monday after the date of publication
of this notice as the date from which the provisions of the said Sectoral
Determination shall become binding. MMS MDLADLANA, MP
MINISTER OF LABOUR
DEPARTEMENT VAN ARBEID
NO R. 1499 2
Desember 2002 WET OP BASIESE DIENSVOORWAARDES,
NO 75 VAN 1997
SEKTORALE VASSTELLING 8,
PLAASWERKER SEKTOR,
SUID AFRIKA Ek, Membathisi Mphumzi Shepherd Mdladlana, Minister van Arbeid, maak
ingevolge artikel 51(1) van die Wet op Basiese Diensvoorwaardes, No 75 van
1997, n Sektorale Vasstelling met diensvoorwaardes vir werknemers en
werkgewers ten opsigte van die Plaaswerkers Sektor, Suid Afrika wat in die
bylae hier verskyn en bepaal die tweede Maandag na die datum van die
publikasie van hierdie kennisgewing as die datum waarop die bepalings van die
genoemde Sektorale Vasstelling bindend word. MMS MDLADLANA, LP
MINISTER VAN ARBEID
PART A:
APPLICATION 1. SCOPE OF APPLICATION (1)
The determination
applies to the employment of farm workers in all farming activities in the
Republic of South Africa. (2)
Without limiting its
meaning, farming activities includes primary and secondary agriculture,
mixed farming, horticulture, aqua farming and the farming of animal products
or field crops. (3)
For the purposes of
this determination, a farm worker includes (a) a domestic worker employed in a home on a farm; (b) a security guard employed to guard a farm or other
premises where farming activities are conducted, who is not employed in the
private security industry. (4)
Subject to clause
(3), this determination does not apply to any person employed in activities
covered by another sectoral determination or by a bargaining council
agreement in terms of the Labour Relations Act, 1995. (5)
The provisions of the
Basic Conditions of Employment Act apply to all farm workers covered by this
determination and their employers in respect of any matter that is not
regulated by this sectoral determination. PART B: MINIMUM WAGES
2. MINIMUM WAGE LEVELS
(1)
With effect from 1
March 2003 an employer must pay a farm worker at least the minimum wage
prescribed in this clause. (2)
An employer must pay
a farm worker (a) who works more than 27 ordinary hours of work
per week at least the monthly wage set out in Table 1; (b) who works 27 or less ordinary hours of work
per week at least the hourly rate as set out in Table 1; MINIMUM WAGES FOR FARM WORKERS UNDER 18 YEARS OF AGE
3
(1) An employer must pay a farm worker who is
15 years of age or older, but less than 18 and who works for more than 35
hours per week or less at least the hourly rate or remuneration, specified in Table 1
CALCULATION OF WAGES OR
REMUNERATION
4. (1) The wage or remuneration of a farm
worker is calculated by reference to the farm workers ordinary hours of
work. (2)
For the purposes of
any calculation in terms of this determination (a)
the hourly wage or
remuneration of a farm worker is obtained by (i) dividing the weekly wage or remuneration by the
ordinary number of hours worked in a week; (b)
the daily wage or remuneration of a farm worker is
obtained by (i)
multiplying the
hourly wage or remuneration by the number of ordinary hours worked in a day;
or (ii) dividing
the weekly wage or remuneration by the number of days worked in a week. (c)
the weekly wage or
remuneration of a farm worker is obtained by (i)
multiplying the
hourly wage or remuneration by the number of ordinary hours worked in a day
multiplied by the number of days
worked in a week; or (ii)
multiplying the daily
wage or remuneration by the number of days worked in a week; or (iii)
dividing the monthly
wage or remuneration by four and one-third (13/3) (d)
the monthly wage or
remuneration of a farm worker is obtained by multiplying the weekly wage or
remuneration by four and a third (13/3) PAYMENT OF REMUNERATION
5. (1) An employer must pay a farm worker (a)
in South African
currency; (b)
daily, weekly,
fortnightly or monthly; and (c)
in cash, by cheque or
by direct deposit into an account designated by the farm worker. (2)
Any payment in cash
or by cheque must be given to each farm worker- (a)
at the workplace; (b)
during the farm
workers working hours; and (c)
in a sealed envelope
which becomes the property of the farm worker. (3)
An employer must pay
a farm worker on the normal payday agreed to in writing by the farm worker. INFORMATION CONCERING PAY
6. (1) On every pay day, the employer must
give the farm worker a statement
showing (a)
the employers name
and address; (b)
the farm workers
name and occupation; (c)
the period in respect
of which payment is made; (d)
the farm workers
wage rate and overtime rate; (e)
the number of
ordinary hours worked by a farm worker during that period; (f)
the number of
overtime hours worked by the farm worker during that period; (g)
the number of hours
worked by the farm worker on a paid holiday or on a Sunday; (h)
the farm workers
wage; (i)
details of any other
pay arising out of the farm workers employment; (j)
details of any
deductions made; (k)
the employers
registration number with the Unemployment Insurance Fund and the employers
contribution to the Fund; and (l)
the actual amount
paid to the farm worker. (2)
An employer must
retain a copy or record of each statement for three years. PROHIBITED ACTS CONCERNING
PAY
7. (1) An employer may not withhold any
payment from a farm worker or require a farm worker to pay the farmer or any
other person in respect of (a)
the employment or
training of that farm worker; (b)
the supply of any
work equipment or tools; or (c)
the supply of any
work clothing.[1] (2) An
employer may not require a farm worker to purchase any goods from the
employer or from any person, shop or other business nominated by the
employer. (3)
An employer may not
levy a fine against a farm worker. (4)
An employer may not
require or permit a farm worker to (a)
repay any amount paid
except for overpayments previously made by the employer resulting from an
error in calculating the farm workers pay; or (b)
acknowledge receipt
of an amount greater than the pay actually received. DEDUCTIONS
8.
(1) An employer may not make any deduction
from a farm workers pay except (a) a deduction not exceeding 10 percent of the farm
workers wage made in accordance with sub-clauses (2) and (3) for
accommodation in which the farm worker ordinarily resides; (b) a deduction not exceeding 10 percent of the farm
workers wages made in accordance with sub-clause (2) for food supplied to the farm worker; (c) at the written request of a farm worker, a
deduction of an amount which the
employer has paid or undertaken to pay to a third party contemplated by
sub-clause (7); (d) a deduction, not exceeding one-tenth of
the wage due to the farm worker on the pay-day concerned, towards the
repayment of any amount loaned or advanced to the farm worker by the
employer; (e) a
deduction of any amount which the employer is required to make by law or in
terms of a court order or arbitration award. (2)
An employer may only make a
deduction in respect of accommodation or food in terms of sub-clause 1(a) or
(b) respectively if
(a) the
food or accommodation is provided free of charge by the employer to the farm
worker at the employers cost; (b) the
food or accommodation is provided on a consistent and regular basis as a
condition of employment; © no
additional deduction is made from the farm workers remuneration for food or
accommodation; (d) in
the case of accommodation, no deduction is made by the employer for
electricity, water or other services; and (e) the
deduction does not exceed the cost to the employer of supplying food or
accommodation, as the case may be. (3)
A deduction in terms
of sub-clause 1(a) may only be made for a house that meets the following
requirements: (a) the house has a
roof that is durable and waterproof ; (b) the house has glass windows that can be opened; (c) electricity is available inside the house; (d) water is available on tap inside the house; (e) a flush toilet or pit latrine is available in, or
in close proximity to, the house; and (f) the house is not less than 30 square meters in
size. (4)
An employer may not
make any deduction for accommodation in terms of sub-clause (1)(a) in respect
of a farm worker who is under 18 years of age. (5)
An employer may only
make a deduction in terms of sub clause 1(a) in respect of one farm worker residing
in any house. (6)
(a) Subject to sub clause (1)(a) where more
than two farm workers reside in communal accommodation, the maximum deduction
that the employer may make in total in respect of all the farm workers who
reside in that accommodation is 25% of the applicable minimum wage payable to
an individual farm worker.[2] (b) An
equal amount must be deducted in respect of each of the farm workers residing
in accommodation contemplated by paragraph (a). (7)
A deduction may only
be made in respect of clause 8(1)© in respect of a payment made or to be made
to (a) any
holiday, sick, medical, insurance, savings, provident fund or pension fund of
which the farm worker is a member, (b) any
registered trade union in respect of subscriptions; © any
bank, building society, insurance business, registered financing institution,
local authority in respect of a payment on a loan granted to the farm worker
to acquire a dwelling; (d) the
owner or agent in respect of the rent of a dwelling or accommodation occupied
by the farm worker. PART C: PARTICULARS OF EMPLOYMENT
9. WRITTEN PARTICULARS OF EMPLOYMENT (1) An employer must supply a farm worker,
when the farm worker starts work with the following particulars in writing- (a)
the full name and
address of the employer; (b)
the name and
occupation of the farm worker, or a brief description of the work for which
the farm worker is employed; (c)
the place of work,
and where the farm worker is required or permitted
to work at various places, an indication of this; (d)
the date on which employment
began; (e)
the farm workers
ordinary hours of work and days of work; (f)
the farm workers
wage or the rate and method of payment; (g)
the rate of pay for
overtime work; (h)
any other cash
payments that the farm worker is entitled to; (i)
any food or
accommodation payment that the farm worker is entitled to and the value of
the food or accommodation calculated in accordance with clause (8); (j)
any other payment in
kind received by the employer; (k)
how frequently wages
will be paid; (l)
any deductions to be
made from the farm workers wages; (m)
the leave to which
the farm worker is entitled to; (n)
the period of notice
required to terminate employment, or if employment is for a specific
period, the date when employment is to terminate. (2)
If a farm worker is
not able to understand the written particulars, the employer must ensure that
they are explained to the farm worker in a language and in a manner that the
farm worker understands. (3)
The employer must
revise the written particulars if there is any change in the farm workers
terms of employment. (4)
An employer must
retain a copy of the written particulars while the farm worker is employed
and for three years thereafter. PART D: HOURS OF WORK
EMERGENCY WORK 10. (1) Clauses 11, 13(1), 16(2), 17(1),
18(1) and 19(1) do not apply to work which is required to be done without
delay owing to circumstances for which the employer could not reasonably have
been expected to make provision and which cannot be performed by farm workers
during their ordinary hours of work.[3]
(2) Sub-clause (2)
does not affect the obligation of an employer to pay a farm worker for any
work performed at the farm workers ordinary rate of pay or overtime rate, as
the case may be. ORDINARY HOURS OF WORK
11. An employer may not require or permit a farm worker to work
more than (a) 45
hours in any week[4]; and (b) nine
hours on any day if the farm worker works for five days or less in a week; or © eight
hours in any day if the farm worker works for more than five days in any
week. EXTENSION OF ORDINARY HOURS OF WORK FOR FARM WORKERS
12.
(1) A worker and an employer may conclude a
written agreement in terms of which the farm workers ordinary hours of work
(a) are
extended by not more than five hours per week for a period of not more than
four months in any continuous period of twelve months; and (b) are
reduced by the same number of hours during a period of the same duration in
the same twelve month period. (2)
An
agreement in terms of sub-clause (1) may not extend the farm workers
ordinary hours of work to more than ten hours on any day. (3)
During any
period of extended or reduced ordinary hours of work in terms of sub-clause
(1), the employer must pay the farm worker the wage the farm worker would
have received for the farm workers normal ordinary hours of work. (4)
If a farm
workers employment terminates for any reason at a time when the farm worker
has worked a great number of extended ordinary hours than reduced ordinary
hours, the employer must pay the worker for the extended ordinary hours
worked at the overtime rate in terms of clause (13). (5)
An
employer who concludes a contract in terms of this clause must- (a) supply
the farm worker with a copy of the contract; (b)
record any
extended or reduced hours work in terms of the contract on the statement
supplied to the worker in terms of clause 6. OVERTIME 13. An employer may not
require or permit a farm worker- (a)
to work overtime
except in accordance with an agreement concluded by the employer and the farm
worker; (b)
to work more than 15
hours overtime a week; or (c)
to work more than 12
hours, including overtime, on any day. PAYMENT OF OVERTIME
14. (1) An employer must pay a farm worker at
least one and one-half times the farm
workers wage for overtime worked. (2) Despite sub-clause (1), an agreement
may provide for an employer to - (i)
pay a farm worker not
less than the farm workers ordinary wage for overtime worked and grant the
farm worker at least 30 minutes time off on full pay for every hour of
overtime worked; or (ii)
grant a farm worker
at least 90 minutes paid time off for each hour of overtime worked. (3) (a) An employer must grant paid time off in
terms of sub-clause (2) within
one month of the farm worker becoming entitled to it. (c)
An agreement in
writing may increase the period contemplated by paragraph (a) to twelve
months. © An agreement concluded in terms of
paragraph (b) with a farm worker when the farm worker commences employment,
or during the first three months of employment, is only valid for one year. (4) Any overtime worked on a Sunday or
public holiday must be paid in accordance with the provisions for Sundays and
public holidays in clauses 17 and 18. COMPRESSED WORKING WEEK
15. (1) An agreement
in writing may require or permit a farm worker to work up to twelve hours in
a day, inclusive of the meal intervals required in terms of clause 14,
without receiving overtime pay. (2) An
agreement in terms of sub-clause (1) may not require or permit an farm worker
to work - (a) more
than 45 ordinary hours of work in any week; (b) more
than ten hours overtime in any week; or © on
more than five days in any week. WORK ON SUNDAYS
16. (1) An employer must pay a farm worker who
works on a Sunday in accordance with the following table:
(2) For the purposes of sub-clause (1),
a farm worker who does not reside on the employers farm who works on a
Sunday must be regarded as having worked at least two hours on that day. (3) Any time worked on a Sunday by a
farm worker is not taken into account in calculating a farm workers ordinary
hours of work in terms of clause 10, but is taken into account in calculating
the overtime worked by the farm worker in terms of clause 12. (4) If a shift worked by a farm worker
falls on a Sunday and another day, the whole shift is deemed to have been
worked on the Sunday, unless the greater portion of the shift was worked on
the other day, in which case the whole shift is deemed to have been worked on
the other day. NIGHT WORK
17. (1) In section,
night work means work performed after 20:00 and before 04:00 the next day. (2) An
employer may only require or permit a farm worker to perform night work, if so
agreed, and if - (a) the
employer pays the farm worker an allowance of at least 10% of the farm
workers ordinary daily wage; and (b) transportation
is available between the farm workers place of residence and the workplace
at the commencement and conclusion of the farm workers shift. (3) An
employer who requires a farm worker to perform work on a regular basis after
20:00 and before 04:00 the next day must (a) inform
the farm worker in writing, or orally if the farm worker is not able to
understand a written communication, in a language that the farm worker
understands- (i) of
any health and safety hazards associated with the work that the farm worker
is required to perform: and (ii) of
the farm workers rights to undergo a medical examination in terms of
paragraph (b). (b) at
the request of the farm worker, enable the farm worker to undergo a medical
examination, for the account of the employer, concerning those hazards- (i) before
the farm worker starts, or within a reasonable period of the farm worker
starting, such work; (ii) at
appropriate interval while the farm worker continues to perform such work;
and © transfer the
farm worker to suitable day work within a reasonable time if- (i) the
farm worker suffers from a health condition associated with the performance
of night work; and (ii) it is
practicable for the employer to do so. (4) Sub-clause (3) applies to farm workers who work after
20:00 and before 04:00 at least five times per month or 50 times per year. MEAL INTERVALS
18. (1) An
employer must give a farm worker who works continuously for more than five
hours, a meal interval of at least one continuous hour. (2) During
a meal interval, a farm worker may be required or permitted to perform only
duties that cannot be left unattended and cannot be performed by another farm
worker. (3) A farm worker must be paid - (a) for a meal interval in which the farm worker is
required to be available for
work. (b) for any portion of a meal interval that is in
excess of 75 minutes, unless the farm worker lives on the farm or at the
workplace. (4) For
the purpose of sub-clause (1), work is continuous unless it is interrupted by
a meal interval in accordance with this clause. (5) An
agreement in writing may- (a)
Reduce the meal interval
to not less than 30 minutes; (b)
Dispense with a meal
interval for a farm worker who works fewer than six hours on a day. (6) Whenever
an employer is required to give a farm worker a second meal interval because
of overtime worked, that interval may be reduced to not less than 15 minutes. REST PERIOD
19. (1) An
employer must grant a farm worker (a) a daily rest period of at least twelve
consecutive hours between ending work and starting work the next day; (b) weekly
rest period of at least thirty-six consecutive hours which, unless otherwise
agreed, must include a Sunday. (2) A daily rest period in terms of
sub-clause (1)(a) may, by written agreement, be reduced to 10 hours for a
farm worker - (a)
who lives where the
workplace is situated; and (b)
whose meal interval
lasts for at least three hours. (3) despite
sub-clause (1)(b), an agreement in writing may provide for a rest period of
at least sixty consecutive hours every second week. PUBLIC HOLIDAYS
20. (1) An employer
may not require a farm worker to work on a public holiday, except in
accordance with an agreement. (2) If a
public holiday falls on a day on which a farm worker would otherwise have
worked, an employer must pay- (a) a farm worker who does not work on the public
holiday the farm workers daily wage; (b) a farm worker who does work on the public holiday
at least double the daily wage. (3) If a
farm worker who works on a public holiday on which the farm worker would not
normally work, the employer must pay that farm worker an amount equal to - (a)
the farm workers
daily wage; plus (b)
the farm workers
hourly wage for each hour worked on the public holiday. (4) An
employer must pay a farm worker for a public holiday on the farm workers
normal payday. (5) If a
shift worked by a farm worker falls on a public holiday and another day, the
whole shift is deemed to have been worked on the public holiday, but if the
greater portion of the shift was worked on the other day, the whole shift is
deemed to have been worked on the other day. PART E: LEAVE
ANNUAL LEAVE
21. (1) An employer must grant a farm worker (a) at least three weeks leave on full pay in respect
of each twelve months of employment (the annual leave cycle); (b) by agreement, at least one day of annual leave on
full pay for every 17 days on which the farm worker worked or was entitled to
be paid; or (c) by agreement, one hour of annual leave on full pay
for every 17 hours on which the farm worker worked or was entitled to be
paid. (2) An
employer must grant a farm worker an additional day of paid leave if a public
holiday falls on a day during a farm workers annual leave on which the farm
worker would otherwise have worked. (3) An
employer may reduce a farm workers entitlement to annual leave by the number
of days of occasional on full pay granted to the farm worker at the farm
workers request in that annual leave cycle. (4) An
employer must grant - (a) at least three weeks annual leave on full pay in
respect of each 12 months of employment (the annual leave cycle) not later
than six months after the end of the annual leave cycle or the year in which
leave was earned. (b) The leave earned in one year over a continuous
period, if requested by the farm worker. (5) Annual
leave must be taken - (a)
in accordance with an
agreement between the employer and the farm worker; or (b)
if there is no
agreement in terms of paragraph (a), at a time determined by the employer in
accordance with this section. (6) An
employer may not require or permit a farm worker to take annual leave during
- (a) any other period of leave to which the farm worker
is entitled in terms of this chapter; or (b) any period of notice of termination of employment. (7) An
employer may not require or permit a farm worker to work for the employer
during any period of annual leave. (8) An employer may not pay a farm worker
instead of granting paid leave in terms of the clause except on termination
of employment in terms of clause 25. (9) An employer must pay a farm worker
leave pay at least equivalent to the remuneration the farm worker would have
received for working for a period equal to the period of leave, calculated at
the farm workers wage immediately before the beginning of the period of
leave. (10) An
employer must pay a farm worker leave pay before the beginning of the period
of leave. SICK LEAVE
22. (1) For the purpose of this clause sick
leave cycle means the period of 36 months employment with the same employer
immediately following (a)
when the farm worker
commenced work; or (b)
the end of the farm
workers prior sick leave cycle. (2) During every sick leave cycle, the farm
worker is entitled to an amount of paid sick leave equal to the number of
days the farm worker would normally work during a period of six weeks. (3) Despite sub-clause (2) during the first
six months of work, the farm worker is entitled to one days sick leave for
every 26 days worked. (4) An employer may, during the farm
workers first leave cycle, reduce the farm workers entitlement to sick
leave in terms of sub-clause (2) by the number of days sick leave taken in
terms of sub-clause (3). (5)
Where an employer, at the request
of the farm worker, pays fees for a farm workers hospital or medical
treatment, the fees paid may be set off against the workers pay. (6) An employer is not required to pay the farm worker
in terms of this clause if the farm worker 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 farm worker was unable to work for the
durations absence on account of sickness or injury. (7) Within the scope of their professional expertise, a
medical certificate in terms of sub-clause (6) may be provided by - (a) a medical practitioner; (b) a clinic nurse practitioner; (c) a traditional healer; (d) a community health worker; (e) a psychologist; (f) any other person who is certified to diagnose and
treat patients and who is registered with a professional council established
by an Act of Parliament; or (g) any other health professional authorized to
diagnose medical conditions. (8) If
it is not reasonably practicable for a farm worker who lives on the
employers premises to obtain a medical certificate, the employer may not
withhold payment in terms of sub-clause (1) unless the employer provides
reasonable assistance to the farm worker to obtain the certificate. FAMILY RESPONSIBILITY LEAVE
23. (1) This clause applies to a farm worker (a) who has been employed by an employer for longer
than four months; and (b) who works on at least four days a week for that
employer. (2) An
employer must grant a farm worker, during each 12 months of employment, at
the request of the farm worker, three days paid leave, which the farm worker
is entitled to take - (a)
when the farm
workers child is born; (b)
when the farm
workers child is sick; or (c)
in the event of the
death of (i)
the farm workers
spouse or life partner; or (ii)
the farm workers
parent, adoptive parent, grandparent, child, adopted child, grandchildren or
sibling. (3) A farm worker may take family responsibility
leave in respect of the whole or part of the day. (4) Subject to sub-clause (5), an employer
must pay a farm worker for a days family responsibility leave- (a) the wage the farm worker would normally have
received for work on that day; and (b) on the farm workers usual payday. (5) Before paying a farm worker for leave
in terms of this clause, an employer may require reasonable proof of an event
contemplated in sub-clause (2) for which the leave was required. (6) A farm workers unused entitlement to
leave in terms of this clause lapses at the end of the annual leave cycle in
which it accrues. MATERNITY LEAVE[5]
24. (1) A farm worker
is entitled to at least four consecutive months maternity leave. (2) A farm worker may commence maternity
leave - (a) at any time from four weeks before the expected
date of birth, unless otherwise agreed; or (b) on a date from which a medical practitioner or a
midwife certifies that it is necessary for the farm workers health or that
of her unborn child. (3) A farm worker may not work for six
weeks after the birth of her child, unless a medical practitioner or midwife
certifies that she is fit to do so. (4) A farm worker who has a miscarriage
during the third trimester of pregnancy or bears a stillborn child is
entitled to maternity leave for six weeks after the miscarriage or
stillbirth, whether or not the farm worker had commenced maternity leave at
the time of the miscarriage or stillbirth. (5) A
farm worker must notify an employer in writing, unless the farm worker is
unable to do so, of the date on which the farm worker intends to - (a)
commence maternity
leave; and (b)
return to work after
maternity leave. (6) Notification
in terms of sub-clause (5) must be given - (a)
at least four weeks
before the farm worker intends to commence maternity leave; (b)
if it is not
reasonably practicable to do so, as soon as is reasonably practicable. (7) No employer may require or permit a pregnant farm
worker or a farm worker who is nursing her child to perform work that is
hazardous to her health or the health of her child. (8) During a farm workers pregnancy, and for a period
of six months after birth of her child, her employer must offer her suitable,
alternative employment on terms and conditions that are no less favourable
than her ordinary terms and conditions of employment, if- (a)
the farm worker is
required to perform night work, as defined in clause 15 or her work poses a
danger to her health or safety or that of her child; and (b)
it is practicable for
the employer to do so PART F:
PROHIBITION OF CHILD LABOUR AND FORCED LABOUR
PROHIBITION OF CHILD LABOUR
AND FORCED LABOUR
25. (1) No person may employ in farming
activities a child (a)
who is under 15 years
of age; or (b)
who is under the
minimum school leaving age in terms of any law, if this is 15 or older.[6] (2) No
person may employ a child in an employment (a)
that is inappropriate
for a person of that age; (b)
that places at risk
the childs well-being, education, physical or mental health, or spiritual,
moral or social development. (3) An employer must maintain for three years,
a record of the name, date of birth and address of every farm worker under
the age of 18 years employed by them. (4) Subject
to the Constitution of the Republic of South Africa, all forced labour is
prohibited. (5) No
person may, for their own benefit or for the benefit of someone else cause,
demand or impose forced labour in contravention of sub-clause (4). (6) A
person who employs a child in contravention of sub-clause (1) and (2) or
engages in any form of forced labour in contravention of sub-clauses (4) and
(5) commits an offence in terms of sections 46 and 48 of the Basic Conditions
of Employment Act respectively, read with section 93 of that Act. (7) An
employer may not require or permit a child who is 15 years of age or older
but younger than 18 - (a)
to work after 18h00 and before 6h00 the following
day; (b)
to work more than 35 hours in any week (c)
without limiting
sub-clause (2), to work with agro-chemicals. PART G: TERMINATION OF EMPLOYMENT
TERMINATION OF EMPLOYMENT
26. (1) A contract of employment
terminable at the instance of a party to the contract may be terminated only
on notice of not less than- (a) one week if the farm worker has been employed for
six months or less; (b) four weeks, if the farm worker has been employed
for six months or more. (2) The employer and farm worker may agree to a longer
notice period, but the agreement may not require or permit a farm worker to
give a period of notice longer than that required of the employer. (3) (a) Notice of
termination of contract of employment must be given in writing except when it
is given by an illiterate farm worker. (b) If
a farm worker who receives notice of termination is not able to understand
it, the notice must be explained orally by, or on behalf of, the employer to
the farm worker in an official language the farm worker reasonably
understands. (4) Notice
of termination of a contract of employment given by an employer must (a) not be given during any period of leave to which
the farm worker is entitled in terms of clause 17(1) (b) not run concurrently with any period of leave to
which the farm worker is entitled in terms of this determination, except sick
leave. (5) Nothing
in this clause affects the right - (a) of a dismissed farm worker to dispute
the lawfulness or fairness of the dismissal in terms of Chapter VIII of the
Labour Relations Act, 1995, or any other law; and (b) of an employer or a farm worker to
terminate a contract of employment without notice for any cause recognized by
law. PAYMENT INSTEAD OF NOTICE
27. (1) Instead of giving a farm worker notice
in terms of this clause, an employer may pay the farm worker the wages the
farm worker would have received, if the farm worker had worked during the
notice period. (2) If a farm worker gives notice of
termination of employment, and the employer waives any part of the notice,
the employer must pay the wages referred to in sub-clause (6), unless the
employer and the farm worker agree otherwise. ACCOMMODATION, LIVESTOCK AND
CROPS ON TERMINATION
28. (1) This clause
applies if the employer of a farm worker terminates the contract of
employment of that farm worker (a) before the date on which the employer was
entitled to do so in terms of clause 26;
or (b) in terms of clause 27. (2) If
the farm worker resides in accommodation on the premises of the employer or
that is supplied by the employer, the employer is required to provide the
farm worker 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. (3) A
farm worker who keeps livestock on the land of the employer is entitled to
keep that livestock for the period stipulated in the contract of employment
or for one month from the date on which the contract of employment was
terminated in terms of sub-clause (1). (4) (a) A farm worker who has standing crops
on the land of the employer is entitled to tend to those crops and 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. (b) Paragraph (a) applies in addition to a
farm worker who terminates the contract of employment in accordance with
clause 26. (5) If a farm worker elects to remain in
accommodation in terms of sub-clause (2) after the employer has terminated
the farm workers contract of employment in terms of sub-clause (1), the
employer may deduct an amount calculated in accordance with clause (8) from
the amount that the employer is required to pay the farm worker in terms of
clause 29. PAYMENTS ON TERMINATION
29. On termination of
employment, an employer must pay a farm worker all monies due to the farm
worker including (a)
any remuneration that
has not been paid; (b)
any payment owing in
respect of extended ordinary hours of work in terms of clause 12; (c)
any paid time off
that the farm worker is entitled to in terms of clause 14 or 16 that the farm
worker has not taken; (d)
remuneration
calculated in accordance with clause 21(9) for any period of annual leave due
in terms of clause 21(1) that the farm worker has not taken; and (e)
if the farm worker
has been in employment longer than four months, in respect of the farm
workers annual leave entitlement during an incomplete annual leave cycle as
defined in section 20(1) (i) one
days remuneration in respect of every 17 days on which the farm worker
worked or was entitled to be paid; or (ii) remuneration
calculated on any basis that is at least as favourable to the farm worker as
that calculated in terms of subparagraph (i). SEVERANCE PAY
30. (1) For the purpose of this clause,
operational requirements means requirements based on the economic,
technological, structural or similar needs of an employer. (2) An employer must pay a farm worker who
is dismissed for reasons based on the employers operational requirements,
severance pay equal to at least one weeks remuneration for each completed
year of continuous service with that employer. (3) A farm worker who unreasonably refuses
to accept the employers offer of alternative employment with that employer
or any other employer, is not entitled to severance pay in terms of
sub-clause (2). (4) The payment of severance pay in
compliance with this clause does not affect a farm workers right to any
other amount payable according to law. (5) If there is a dispute only about the
entitlement to severance pay in terms of this clause, the farm worker may
refer the dispute in writing to the CCMA. CERTIFICATE OF SERVICE
31. On termination of
employment, a farm worker is entitled to a certificate of service stating (a)
the farm workers
full name; (b)
the name and address
of the employer; (c)
the date
of commencement and date of termination of employment; (d)
the title of the job
or brief description of the work for which the farm worker was employed at
the date of termination; (e)
any
relevant training received by the farm worker; (f)
the pay at
date of termination; and (g)
if the
farm worker requests, the reason for termination of employment. KEEPING OF SECTORAL
DETERMINATION
32. Every employer on whom
this sectoral determination is binding must keep a copy of the sectoral
determination or an official summary, available in the workplace in a place
to which the farm worker has access. TEMPORARY EMPLOYMENT
SERVICES
33. (1) In this clause, temporary employment
service means any person who, for reward, procures for or provides farm
workers to a client if that person remunerates the farm workers. (2) For
the purpose of this Determination, a farm worker whose services have been
procured for, or provided to, a client by a temporary employment service is
employed by of that temporary employment service, and the temporary
employment service is that persons employer. (3) The
employment service and the client are jointly and severally liable to comply
with this determination in respect of its farm workers. (4) If
the employment service is in default of its obligation to make any payment in
terms of this determination to a farm worker for a period of thirty days, the
client concerned becomes liable to make payment. (5) A
client that in terms of this clause makes any payment that is owing to a farm
worker is entitled to recover such amount from the employment service PRESUMPTION AS TO WHO IS A
FARM WORKER
34. A person who works for,
or renders services to, any other person in farming activities is presumed,
until the contrary is proved, to be a farm worker, regardless of the form of
the contract, if any one or more of the following factors is present: (a)
the manner in which
the person works is subject to the control or direction of another person; (b)
the persons hours of
work are subject to the control or direction of another person; (c)
the person forms part
of the employers organisation; (d)
the person has worked
for that other person for an average of at least 40 hours per month over the
last three months; (e)
the person is
economically dependant on the other person for whom that person works or
renders services; (f)
the person is
provided with tools of trade or work equipment by the other person; or (g)
the person only works
for or renders services to one person. WHAT WORDS MEAN IN THIS
DETERMINATION
35. Any
expression in this determination, which is defined in the Basic Conditions of
Employment act and is not defined in this clause, has the same meaning as in
the Act and- agreement
includes a collective agreement; Basic
Conditions of Employment Act means the Basic Conditions of Employment Act,
1997 (Act 75 of 1997) child
means a person who is under 18 years of age; day
means, for the purposes of measuring hours of work, a period of 24 hours,
measured from the time when a domestic worker normally commences work; dispute
includes an alleged dispute; employee
means (a) any person, excluding an independent contractor, who works for
another person or for the State and who receives, or is entitled to receive,
any remuneration; and (b)
any other person who in any manner assists in carrying on or
conducting the business of an employer; farm
worker means an employee who is employed mainly or wholly in connection with
farming activities, and includes a domestic worker employed in a home on a
farm and a security guard employed on a farm or other agricultural premises,
excluding a security guard, employed in the private security industry; incapacity means inability to work owing to
sickness or injury; ordinary hours of work means the hours of work
permitted in terms of clause 11; overtime means the time that the farm worker
works during a day or in a week in excess of ordinary hours of work; paid leave means any annual leave, paid sick
leave or family responsibility leave that a farm worker is entitled to in
terms of Part E of this determination; public holiday means any day that is a public
holiday in terms of the Public Holiday Act, 1994 (Act No. 36 of 1994); remuneration means any payment in money or in
kind, or both in money and in kind, made or owing to any person in return for
that person working for any other person, including the State; wage means the amount of money paid or payable to
a farm worker in respect of ordinary hours of work or, if they are shorter,
the hours a farm worker normally works in a day or week; week in relation to a farm worker, means the
period of seven days within which the working week of that farm worker falls; work place means any place where farm worker
works. WRITTEN PARTICULARS OF EMPLOYMENT
(FARM WORKER) Given by:
(herein after referred to as the employer)
to (herein after referred to as the employee) 1. Commencement Employment started/will start on
and continue until terminated
in terms of clauses 1 and 2 of the guidelines. 2. Place
of work
..
3. Job
description
Job Title Farm Worker :
.. Tractor
driver/truck driver/labourer etc. Duties:
4. Hours of
work 4.1
Normal working hours
will be
. hours per week, made up
as follows: Monday / Tuesday / Wednesday / Thursday / Friday:
. am to
... pm Meal intervals will be from:
.. to
.
.
. Other breaks:
Saturdays:
..
.... am to
..
. pm Meal intervals will be from:
.. to
.
.
. Other breaks:
.
.
Sundays:
.... am to
..
. pm Meal intervals will be from:
.. to
.
.
Other breaks:
4.2 Hours of work will be extended with by not
more than five hours per week during
. and reduced by the same hours
during
4.3 Overtime will only 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 clause 5.2. 5. Wage
5.5 The employer shall review the
employees salary/wage on or before 1 March of
every year. 6. Termination
of employment Either party can terminate this agreement with one weeks notice during
the first six months of employment and with four weeks notice there
after. Notice must be given in
writing except when it is given by an illiterate domestic worker. In the case where the domestic worker 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. A farmer is also obliged to
allow the farm worker who has standing crops on the land a reasonable time to
harvest the crop or the farmer may pay the worker an agreed amount for that
crop. 7.
Sunday
work Any work on Sundays will be by agreement between parties and will be
paid according to clause 7 of the guidelines. 8. Public
Holidays Any work on holidays will be by agreement and will be paid according
to clause 8 of the guidelines. 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 10.1 During
every sick leave cycle of 36 months the employee 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. 10.2 During
the first six months of employment the employee will entitled to one days
paid sick leave for every 26 days worked. 10.3 The employee is to notify the
employer as soon as possible in case of his/her absence from work through
illness. 10.4 A medical certificate may be
required if absent for more than 2 consecutive days or has been absent on
more than two occasions during an eight-week period. 11. Maternity
leave (Tick the applicable clauses in the space provided).
12. Family
responsibility leave The employee will be entitled to three days
family responsibility leave during each leave cycle if he or she works on at
least four days a week. 13. Accommodation (Tick the applicable boxes).
14. Clothing (Delete this clause if not applicable)
sets of uniforms/protective clothing will be supplied to the
employee free of charge by the employer and will remain the property of the
employer.
.. sets of boots/gumboots
will be supplied to the employee free of charge by the employer and will
remain the property of the employer.
.
..
. will be supplied to the employee
free of charge by the employer and will remain the property of the employer. 15. Other
conditions of employment or benefits
..
..
16. General Any changes to the written particulars will only be valid if agreed to
by both parties.
.. EMPLOYER
Acknowledgement of receipt by employee:
.. Date: GUIDELINES
1.
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 domestic 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 domestic 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. 2.
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 approach the CCMA for assistance. Pro-rata leave and severance pay might be 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 workers
duties and/or to find alternatives, then such employer may terminate the services
of the domestic 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. 3.
Wage/Remuneration/Payment
There is a prescribed minimum rate of remuneration. Additional
payments (such as for overtime or work on Sundays or Public Holidays) are
calculated from the total remuneration 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. 4.
Transport
allowances
Sectoral Determination 8: Farm workers Sector, South Africa does not regulate this and is therefore
open to negotiation between the parties. 5.
Hours
of work
5.1 Normal hours (excluding
overtime)
A farm worker may not be made to: 1.
work more than 45 hours a week; 2.
work more
than nine hours per day for a five day work week; 3.
work more
than eight hours a day for a six day work week; and 5.2 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. 5.3 Overtime
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 employees normal wage or an
employee may agree to receive paid time off. 5.4 Daily and weekly rest
periods
5.4.1 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. 5.4.2 The daily rest period may by agreement
be reduced to 10 hours for an employee who live on the premises whose meal
interval lasts for at least three hours. 5.4.3 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. 5.5 Night
work 5.5.1 Night
work means work performed after 20:00 and before 04:00 5.5.1 Worked only 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. 6.
Meal
intervals
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. 7.
Work
on Sundays
Must be paid as follows:
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. 8. Public
Holidays
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 Youth
Day Human Rights Day National
Womans Day Good Friday Heritage
Day Family Day Day
of Reconciliation Freedom Day Christmas
Day Workers Day Day
of Goodwill Any other day declared an official public holiday from time to time
should 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 days wage. 9. Annual
Leave
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. 10. Sick leave
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 days 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 employees absence on account of sickness or
injury. 11. Maternity
leave
The employee is entitled to at least four consecutive months
maternity leave. The employer is not
obliged to pay the domestic worker for the period for which she is off work
due to her pregnancy. However the parties may agree that the domestic worker
will receive part of or her entire salary/wage for the time that she is off
due to pregnancy. 12. 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 employees child is born, or when the employees child is sick or in the
event of the death of the employees spouse or life partner or parent,
adoptive parent, grandparent, child, adopted child, grandchild or sibling. 13. Deduction
from the remuneration
The Sectoral Determination prohibits an employer from deducting any
monies from the workers 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. 14. Other
issues
There are certain other issues which are not regulated by the Sectoral
Determination such as probationary periods, right of entry to the employers
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. 15 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 domestic worker by requesting a copy of the identity document or birth
certificate. 16. 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 favourable 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
office of the Department of Labour, who will gladly assist.
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