Between running a farming operation and employing workers, it can be a very busy life. However, it is important to get it right. From the contractual papers to understand your rights as an employer or employee, legal consultant and owner of Katika Consultancy, Katlego Ngwane, shares her expertise with us.
One of the main ideas is to always understand the law and your rights, says Ngwane. In South Africa, there are two legislations for the protection of citizens.
“What’s important and where we need to start, is the fact that we got two pieces of legislation that regulate employment contracts and what’s supposed to be in it: the Basic Conditions of the Employment Act and the Labour Relations Act,” says Ngwane.
If one does not know what to put into a contract, they can rely on these pieces of legislation to guide them in terms of what are the rights of employers and the rights of employees. This includes the responsibility and duties that each party has to one other.
What is an agreement?
According to Ngwane, an agreement is any piece of paper you sign. “But you can’t put things in there that are impossible to do or are illegal. That would be the first two things.
“You can’t put there that someone needs to work for you for 24 hours. It is illegal and impossible. It has to be practical to the particular circumstances that we are talking about,” Ngwane explains.
A lot of agricultural contracts will have terms about where workers live. If they are occupying a space on the land, the contract can state who can live there with the employees.
Salary is an important topic as well, especially the rate per hour.
“My advice to farmers is to be specific as possible in a contract because if there should be a disagreement or a dispute that occurs, [lawyers] rely on that piece of paper – who is wrong in that particular situation and who is right,” she adds.
Understanding the nitty-gritty
It does not matter the kind of relationship the employee and employer have, something should never be assumed. Consensus must be reached; people must know what they are working towards.
“Over the years we learned that assuming that some things are implied doesn’t actually work, because if someone contests the contract, it does not add value simply because it was implied,” she says.
One of the fundamental conditions of a contract is that both parties must be aware of what they are signing.
“If one party says that it wasn’t that implied or the party says that they are not aware, then the contact is deemed invalid to that specific thing that is implied,” Ngwane explains.
Read everything
As an employee, never sign a contract you haven’t read.
“We find in agriculture that we write a lot of contracts in the language which the person understands and reads. Because then we are guaranteed when an employee signs, they fully understood what they are signing,” she says.
A contract can be invalid or illegal. Invalid means that certain requirements on the contract were not fulfilled and therefore it is invalid. An illegal contract is a condition that is illegal by law.
“For example, people must work a certain amount of times per week. If they work more than that, it is overtime and if people are not paid for overtime, it is illegal,” she explains.
People are human, Ngwane adds, so it is understandable that mistakes are likely in the absence of legal advice from an expert.
“There can be honest mistakes, where everything wasn’t included or you assumed that the employee will know and figure out.”
Basic terms to add to your contract
Contracts might differ according to your role, however, there are basic terms you can include:
- The role that the individual will play needs to be stated in the contract.
- What their role entails.
- Depending on gender, the clause on maternity leave is important.
- General leave conditions.
“In the agricultural space, the employment contracts differ. When you have to be specific to the sector, of course, one can have a general contract, but in agriculture, you find that one needs to be a little more specific to what that person is doing because different people have different roles on a farm. So, it can never be a general contract, where one-size-fits-all.”
Can changes be made to a contract?
Yes, contracts can change, Ngwane says. It remains situational but a contract can either be amended or a new contract should be drafted depending on the agreement.
Amendment: Making one or two changes to a contract.
Addendum: Adding something to a contract.
A contract in its entity can change when it comes to promotions. Therefore, new contracts will be issued. “To always protect yourself as the employer and employee, it’s best to draft a new contract after promotion,” Ngwane advises.
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