While farmworkers are essential to the economy and food system, many are poor and uneducated, leaving them vulnerable to exploitation and abuse. One form of exploitation that farmers often exert on workers is making them work extra hours with no pay.
Lebogang Sethusha, legal advisor on labour and employment law at Agri SA, says an employer may not require or permit a farmworker to work more than 45 hours a week.
Farmers are supposed to allow the worker work nine hours if they work for five days or less in a week, or eight hours if the worker works for more than five days in any week.
Sethusha reveals that farmworkers’ working hours are regulated by Sectoral Determination 13 under the Basic Condition Employment Act (BCEA).
She indicates that for a farmworker to work more than the stipulated hours, there must be a written agreement between the worker and the employer which makes provision for overtime pay. This pay rate must be at least one-and-a-half times the farmworkers’ wage for overtime worked.
Farmworkers under the age of 18 years of age, (but not younger than 15 years of age) may not work for more than 35 hours per week.
“When there is a misuse of working hours, employees may lodge a case with the department of employment and labour formerly or anonymously using the Impimpa hotline.
“In terms of section 65 of the BCEA, a labour inspector has the authority without a warrant or prior notice to ensure compliance with the act. The inspector may interview employees and request documents from the employer, including employment contacts, attendance registers, and payslips to monitor working hours.”
Meanwhile the South African Human Rights Commission (SAHRC) says that an employer must pay a farmworker who works on a Sunday at double rate.
Workers who perform night work must agree to it. Night work means work performed after 20:00 and before 04:00 the next morning. The farmworker must be compensated with an allowance of at least 10% of the ordinary daily wage and transportation made available between the farmworker’s place of residence and the workplace at the start and end of the shift.
What about meal intervals?
A worker must have a meal interval of one hour after five hours’ work, but the meal interval can be reduced to not less than 30 minutes, through a written agreement. The farmworker who works for less than six hours in total per day can do away with the meal interval altogether through a written agreement with the employer.
A farmworker is entitled to a daily rest period of 12 hours in a row, and a weekly rest period of at least 36 hours in a row which must include a Sunday unless both the employer and the farmworker agree otherwise.
An employer may not require a farmworker to work on a public holiday except in accordance with a written agreement.
An employer must grant a farmworker at least three weeks leave on full pay in respect of each 12 months of employment. For sick leave, a farmworker is entitled to one day’s paid sick leave for every 26 days worked. A farmworker is entitled to four months in a row as maternity leave, which can start at any time from four weeks before the expected date of birth.
The employer does not have to pay the farmworker for the period that she is away due to her pregnancy or the parties could agree on the amount to be paid as wages, on condition she is able to claim maternity benefits from the Unemployment Insurance Fund. A farmworker may not work for six weeks after giving birth unless a medical practitioner or midwife certifies that she is fit to do so.
A farmworker who has been employed for longer than four months and for at least four days a week is entitled to three days’ paid family responsibility leave during every 12 months’ cycle. This type of leave applies when the farmworker’s child is born, or sick or in the event of the death of the farmworker’s spouse, life partner, parent, adoptive parent, grandparent, child, adopted child, grandchildren, or siblings.