DETERMINATION OF EMPLOYMENT CONDITIONS IN 
SOUTH AFRICAN AGRICULTURE

13 September 2001


CONTENTS

Executive Summary

PART I (PDF format 373kb)
Livelihoods Of Farm Workers In South African Agriculture

PART II (PDF format 421kb)
Key Considerations In The Introduction Of A Minimum Wage

PART III (PDF format 39kb)
Minimum wages

PART IV (PDF format 64kb)
Recommendations


 

Executive Summary


Introduction

This summary is divided into four parts. 


Part 1

The purpose in Part I is to arrive at a better understanding of the social and economic position of farm workers in South Africa. To this end, some methodological issues in the measurement of poverty are first discussed. Here, we come to the conclusion that the 'capability model' of Amartya Sen provides an appropriate conceptual framework for such measurement. This is followed by more concrete empirical evidence based on formal data sources as well as field research carried out for the purposes of this report. The main conclusions drawn from this analysis of the data are:

The evidence is clear that most South African farm workers live in circumstances of absolute and relative poverty. Some form of policy intervention is therefore needed to redress the situation. Whether intervention is successful will depend on the extent to which workers' capabilities are improved. The data show a clear correlation between farm worker income and access to housing and household services, and literacy levels. Thus, a minimum wage or an income supplement aimed at increasing the incomes of farm workers could improve their capabilities.

Yet this need not be the case. Improvement of capabilities requires that additional income be invested in nutrition, education, health, etc. rather than in consumer goods. Further, a minimum wage that is set too high may benefit those who are able to retain employment, but could harm those who become unemployed. As the latter is more likely to include vulnerable groups such as female, the youth and non-South African workers, there is a limit to the extent to which a minimum wage can be used to take people out of poverty.

Our main conclusion from the analysis in Part I of the report is that the circumstances of farm workers justify the introduction of a minimum wage. However, our analysis also shows that the most vulnerable farm workers, namely female and children, could lose most if a minimum wage were set too high.

Another conclusion that can be drawn from this discussion is that it is inappropriate to define poverty with reference to a specific wage rate. While target per capita incomes or more sophisticated measures such as the minimum level of living, etc. can be useful planning tools, the discussion shows that they are at best partial measures. Poverty can be more usefully defined as the absence of capabilities, and thus of entitlements. A minimum wage can therefore only be one part of the instruments required to eradicate poverty from among farm workers.

Part II

The purpose in Part II of the report was to try and further our understanding of the scope for increasing the wages of farm workers in South Africa. To this end, Part II covers four main issues. First, the theoretical and empirical literature on minimum wages was investigated. Second, the competitiveness of the South African commercial farming sector was analysed. Third, employers and workers were asked their opinions of a fair minimum wage and a range of other issues. Fourth, the wider economic implications of a minimum wage were modelled in order to assess the macroeconomic effects of the introduction of a minimum wage.

1. Theoretical literature

There are at least three broad implications from the theoretical arguments about the effect of minimum wages for the agricultural sector:

2. South African agriculture

The commercial farming sector in South Africa has been subjected to extensive deregulation over the past two decades. The main policy shifts up to 1994 included deregulation of the marketing of agricultural products; changes in the fiscal treatment of agriculture, including the abolition of preferential tax treatment and a reduction in direct budgetary expenditure; and a start to the processes of land reform, reform of labour legislation, and trade policy reform.

The most important policy initiatives taken subsequent to this time include institutional restructuring in the public sector; the promulgation of the Marketing of Agricultural Products Act, No 47 of 1996; trade policy reform; and labour market reform. The purpose of these policy reforms was to correct the injustices of past policy, to get the agricultural sector on a less capital-intensive growth path and to enhance the international competitiveness of the sector. The main impacts of these reforms can be summarised as follows:

In summary, the agricultural sector has reacted well on aggregate to the withdrawal of state support and to deregulation, despite the fact that there have been winners and losers in the process. It is also important to note that the sector is expected to continue to shed employment opportunities, partly because of a policy-induced capital intensity, and partly because of a natural shift in the economy towards the service sector.

3. Employer and worker perceptions

3.1. Size of the labour force

More than half of the respondents from the field research conducted by CRLS (the 'farm survey') were satisfied with the current size of their labour force. Of those who said their labour force size was sub-optimal, almost two thirds (i.e. a third of all farmers) believed that they had 'too many' permanent workers. Most of these were farmers in the field crop sub-sector.

The most common reasons cited by farmers for employing more workers than necessary was a sense of responsibility towards workers and their families, and a change in the operational requirements of production. The only reason cited for employing fewer workers than necessary was a lack of financial resources.

Less than half of the employers reported that their permanent labour force was smaller now than three years ago and almost a third said it had increased.

3.2. A minimum wage

Employers were asked their opinion of a 'fair minimum wage' for permanent general workers. More than two thirds cited a wage that was higher than the lowest wage that they currently pay. Nearly three quarters of the respondents said that their labour costs would be unaffected by a minimum wage of R20 a day, while less than half said that they would be unaffected by a minimum wage of R30 a day. Thus, the point at which half the employers said they would be affected by a minimum wage is in the region of R25 a day or R500 per month.

When employers were asked what they would do if their labour costs were to increase as a result of a minimum wage, most responded that they would increase mechanisation or that they would rationalise their labour force. Some argued that they would take steps to improve labour productivity. Among the black farmers interviewed, there was a common argument that they needed a low cost for labour to put them on an equal footing with white farmers, who had enjoyed this privilege for many years.

When workers were asked to cite what they would consider to be a fair minimum wage, their response was only about 20% above that cited by employers, with male expecting more than female. Workers justified their 'fair wage' on the grounds that the cost of living was high, that this is what they needed to improve their life and their children's prospects, that this was what their work was worth, and that the farmer could afford to pay such wages.

Thus, workers are likely to risk losing their jobs through the introduction of a minimum wage that is too high. Nevertheless, most workers pointed out that the minimum wages they expected was modest in relation to current wages. There is also substantial overlap between the minimum wages proposed by employers and workers.

3.3. Social and working environment

The responses by workers to questions about their social and working environment showed, among others, that the enforcement of labour legislation remained a challenge in the agricultural sector. Labour laws appear to have had little impact in practice on the farms included in the farm survey. This implies the need for new methods to improve compliance in the agricultural sector.

The qualitative information derived here indicates the extent to which employment in agriculture differs from employment in other sectors, in terms of:

3.4 Macroeconomic considerations

The report has shown the declining trend of agricultural labour and that agricultural labour is lowly paid compared to other sectors in the economy. Although agricultural wage rate grew at a faster rate than many sectors of the economy, the gap between the wage rate in agriculture and other sectors continues to increase. Agricultural wage on the other hand is important for rural households, as it constitutes on average 39% of rural incomes.

The imposition of a minimum wage in agriculture could have a range of effects;

Part III

1. The aims of a minimum wage in agriculture

There are a number of (potentially conflicting) aims that can be pursued through the use of a minimum wage:

2. The level of the minimum wage: a matter of principle

Our research leads to the conclusion that it would be incorrect to measure the impact of a minimum wage against specific poverty levels, whether they are some absolute measure of poverty or a relative measure, as is often done in such policy processes. Farm workers are the poorest of all formally employed South African workers. A minimum wage that sets to lift all of them out of poverty will in all likelihood increase the disparities among farm workers, and between farm workers and other rural people. Yet our research has shown that there is more or less common ground among employers and workers on what constitutes a fair minimum wage.

A further question that needs to be addressed is whether the agricultural sector can absorb the effects of a minimum wage. Farm workers questioned during the course of our field research pointed to their contribution to the profitability of the farm as justification for a minimum wage. However, this was a secondary justification: their primary argument focussed on their own needs. Further, while farm owners and farm workers did not differ significantly in their opinion of the level of a fair minimum wage, farm owners were generally reluctant to even consider the question lest they provide legitimacy to the issue.

However our analysis of the profitability of the agricultural sector provides important pointers. There is little doubt that, when looked at from a long-term perspective, the agricultural sector is healthier now in the post-deregulation era than before. This is partly because of the need to become competitive as domestic support was taken away from farmers, and partly because of the opening up of international opportunities in the post-sanctions era.

However it should be noted that any process of change such as that engendered by the economic and political liberalisation of South African agriculture creates winners and losers even though the net effects are positive. Those made worse off by the policy shifts of the past decade are more vulnerable to pressure from new changes in policy, such as would the case with a minimum wage.

In addition, the success of a minimum wage is more dependent on the future health of the agricultural sector than on the past performance. In this respect, there can be no single future scenario, not least because the sector is not homogeneous.

Our analysis shows that there is every reason to believe that the agricultural sector will continue to grow, but at a slower pace than the economy as a whole and that it will continue to shed labour in that process irrespective of a minimum wage. Our analysis also shows that, despite some weakening in short term indicators of farm profitability, the long run prognosis for the sector is positive.

Yet some adverse consequences must be anticipated. These can include job losses, especially among more vulnerable groups such as female, a more marked shift to the use of seasonal workers, workers who live off farm, and to contract labour; and greater use of (illegal) foreign workers.

3. The level of the minimum wage: a matter of practice

The most important issue to consider here is whether a single minimum wage can be set for the whole of the agricultural sector. While a more rigid instrument, a single minimum wage is easier to implement, and will place less of a burden on implemaletation structures.

However a single minimum wage for agriculture would have to be set so low in order to accommodate the interest of workers in the extensive livestock sector as to be meaningless; or alternatively so high to accommodate the needs of workers on fruit and wine farms, that the rest of the sector will not be able to afford such wages. Thus a four-tier structure of minimum wages is proposed below.

A fairly complex process was embarked upon to identify what minimum wage should apply to each area of the country. Each magisterial district was ranked according to three measures of human capabilities, namely:

A composite rank was then calculated from these three separate indicators, and districts were grouped into four roughly equal-sized groups in terms of the number of districts.

4. Basic conditions of employment for agriculture

The CRLS farm study showed that many farmers did not comply with conditions of employment, particularly in respect of working hours, in existing labour legislation.. Half of the workers interviewed indicated that there are times of the year in which they work 55 hours or more a week. One in ten said that they sometimes work for more than 72 hours a week.

Many respondents did not receive their legal entitlements in terms of annual leave, sick leave, maternity leave, UIF membership and overtime pay. Children of 14 years and younger were reported to be working on nearly a quarter of the farms in the study. Children of 15 to 17 years were reported to be working on nearly 40% of the farms.

Conditions under which female worked were worse than those experienced by male. Even among permanent workers, female were far less likely than male to get paid annual and sick leave, to be paid extra for overtime worked and to be members of the UIF. The latter, in particular, has serious repercussions for female's access to income during maternity. There were discrepancies between the conditions of employment among female and among male, even on the same farm.

Most of the problems identified through the research regarding employment conditions are already regulated through legislation and therefore more attention needs to be given to the implemaletation and enforcement of labour legislation in agriculture. However, there were aspects of farm workers' employment conditions that require specific regulation through the sectoral determination in order to give substance to the rights of workers.

These include:

Other issues to address include addressing the high level of indebtedness, deductions and labour contracting.

There is a high level of indebtedness among farm workers, with some spending more money on debt repayments than on food. Nearly half pay back debt on a weekly basis. Employers were a major source of credit, together with farm shops (many of which are also operated by employers) and other parties.

Two aspects of this phenomenon cause particular concern. First, it suggests that farm workers have little access to formal credit markets. Second, although many employers provide interest-free cash advances, cases were identified of extortionate interest rates being charged by employers - up to 50% per week on a cash loan to workers. The repayment of debt is a major contributor to deductions made off workers' wages.

Further work needs to be done on the credit needs of farm workers and other rural people. Recommendations are made to limit the total size of deductions being made from workers' wages in order to safeguard a minimum cash portion.

A phenomenon associated with deductions was that of 'forced purchases', where workers were given a 'bonus', the cost of which was then deducted from their wages. These practices are already illegal, in terms of the BCEA provision that deductions must be negotiated. The nature of the problem, however, indicates that further regulation may be necessary in order to stop the practice. This also indicates that enforcement activities should draw farmers and farm workers attention to this abuse and the fact that it is illegal.

In some parts of the country farmers have opted to source labour through labour contractors or labour-only brokers. Some have seen this route as a means by which to redefine workers as self-employed people or contractors in their own right.

The sectoral determination needs to confirm that labour contractors are employers and to ensure that labour contractors, labour brokers and their clients retain joint responsibility for compliance with labour legislation and regulation, including the sectoral determination.

Part IV - Recommendations

1. Scope of application

1.1.1. It is proposed that this sectoral determination should cover:

  1. primary and secondary agriculture
  2. mixed farming
  3. horticulture,
  4. animal products
  5. field crops, and
  6. aqua farming.

The conditions of the sectoral determination should apply to workers who work in the agricultural sector except those who are self-employed. A self-employed person is one who controls the means and manner of his/her work in that he or she:

  1. provides the tools (if any) with which he/she works
  2. is not supervised in any way
  3. determines the timing of his/her work
  4. determines the methods if his/her work.

It is further proposed that:

  1. a. any person who works for a single employer for at least two months in one year may not be classified as being self-employed
  2. b. any person who works or supplies personal services on a farm or in the agricultural sector should be regarded as a farm worker unless the work is entirely unsupervised or is supplied to a client or customer of a profession or business undertaking carried on by the individual
  3. c. any person who works on a farm, but is covered by another sectoral determination or by a bargaining council agreement, shall have their terms and conditions of employment determined by the other determination or the agreement concerned. For instance, an worker employed in a bed and breakfast establishment on a farm would be covered by the agricultural determination, unless there is a determination or a bargaining council agreement regulating the hospitality sector covering bed and breakfast establishments
  4. d. domestic workers and security guards on farms should be classified as farm workers and would be entitled to the same basic terms and conditions of employment as other farm workers.

A person who works in the agricultural sector is covered by the sectoral determination regardless of his or her status as:

  1. an indefinitely employed full-time worker
  2. a fixed-term full-time worker
  3. an indefinitely employed part-time worker
  4. a fixed-term part-time worker.

Part-time workers shall be entitled to the minimum wage applicable in their magisterial district, and to all terms and conditions of employment specified in the sectoral determination, on a pro-rata basis.

2. Minimum wage levels

2.1. Proposed minimum wage levels

It is proposed that there are four different minimum wages for each of the four geographical areas in the table below. The minimum wages to be paid to workers in the agricultural sector are:

  1. R750,00 per month in the magisterial districts in Group 1
  2. R600,00 per month in the magisterial districts in Group 2
  3. R500,00 per month in the magisterial districts in Group 3
  4. R400,00 per month in the magisterial districts in Group 4.

Table A: Ranking of Magisterial Districts by income and human capabilities

Group Magisterial Districts
Alberton, Amersfoot, Balfour, Belville, Benoni, Bizana, Boksburg, Botshabelo, Brakpan, Bredasdorp, Bronkhorstspruit, Butterworth, Cala, Caledon, Camperdown, Cape, Ceres, Chatsworth, Cofimvaba, Cullinan, Dannhauser, Dundee, Durban, Dzanani, Engcobo, Flagstaff, Fort Beaufort, Ga-Rankuwa, George, Germiston, Giyani, Goodwood, Groblersdal, Heidelberg (G), Hermanus, Hewu, Hoëveldrif, Hopefield, Humansdorp, Impendle, Inanda, Ingwavuma, Johannesburg, Keiskammahoek, Kempton Park, Knysna, Krugersdorp, Kuilsrivier, Kwamhlanga, Lady Frere, Libode, Lower Tugela, Lusikisiki, Malamulela, Malmesbury, Mankwe, Mapulaneng, Mbibana, Mdantsane, Mdutjana, Mhala, Mhlabathini, Middelburg (MP), Middeldrift, Mitchells Plain, Mkobola, Mokerong, Moorreesburg, Mossel Bay, Moutse, Mpofu, Mqanduli, Namakgale, Nebo, Nigel, Nongoma, Nqamakwe, Nqutu, Nsikazi, Oudtshoorn, Paarl, Peddie, Pietermaritzburg, Piketberg, Pinetown, Port Elizabeth, Port St Johns, Pretoria, Qumbu, Randburg, Roodepoort, Sekgosese, Seshego, Simdlangentsha, Simonstown, Somerset West, Soshanguve, Soweto, Springs, Stellenbosch, Strand, Tabankulu, Temba, Thabamoopo, Thaba 'Nchu Thohoyandou, Ubombo, Uitenhage, Umbumbulu, Umlazi, Umtata, Umzimkulu, Umzinto, Vanderbijlpark, Vereeniging, Victoria East, Vredenburg, Vuwani, Warmbad, Wellington, Willowvale, Witsieshoek, Wonderboom, Worcester, Wynberg, Zastron, Zwelitsha
2 Aberdeen, Adelaide, Albert, Alfred, Alexandria, Beaufort West, Belfast, Bergville, Bethal, Bethlehem, Britstown, Bultfontein, Calitzdorp, Calvinia, Carolina, Christiana, Clanwilliam, Cradock, Delmas, East London, Eerstehoek, Elliotdale, Ermelo, Eshowe, Estcourt, Gordonia, Hankey, Heidelberg (WC), Hlanganani, Iduywa, Joubertina, Kenhardt, Kriel, Ladismith, Lainsburg, Lions River, Lower Umfolozi, Middelburg (EC), Mapumulo, Mmabatho, Moltena, Montagu, Mooi River, Mount Ayliff, Msinga, Mthonjaneni, Mtunzini, Murraysburg, Namakwaland, Nkandla, Ntabathemba, Phalaborwa, Phokwani, Prince Albert, Prieska, Port Shepstone, Potchefstroom, Potgietersrust, Randfontein, Ritavi, Riversdal, Robertson, Rustenburg, Sasolburg, Schweizer-Reneke, Sekhukhuneland, Standerton, Sterkstroom, Steynsburg, Sutherland, Swellendam, Tarka, Tsolo, Tsomo, Tulbagh, Umvoti, Uniondale, Van Rhynsdorp, Viljoenskroon, Vredendal, Vryburg, Waterval Boven, Williston, Witbank
3 Aliwal North, Barkley-West, Bloemfontein, Brandfort, Brits, Carnarvon, De Aar, Edenburg, Frankfort, Fraserburg, Glencoe, Graaff-Reinet, Hartswater, Hay, Hlabisa, Hofmeyer, Hopetown, Huhudi, Kimberley, King William's Town, Kirkwood, Klerksdorp, Koffiefontein, Kranskop, Kuruman, Lady Grey, Lulekani, Maluti, Mapumulo, Moretele, Mount Frere, Nelspruit, New Hanover, Ngqueleni, Nkomazi, Oberholzer, Odendaalsrus, Parys, Philipstown, Pietersburg, Pilgrims Rest, Queenstown, Reitz, Richmond (KZN), Somerset East, Thabazimbi, Underberg, Vryheid, Wakkerstroom, Welkom, Westonaria, Wolmaransstad
4 Albany, Babanango, Baberton, Barkley East, Bathurst, Bedford, Bethulie, Bochum, Bolobedu, Boshof, Bothaville, Cathcart, Clocolan, Colesberg, Delareyville, Dewetsdorp, Elliot, Ellisras, Excelsior, Fauresmith, Ficksburg, Fouriesburg, Hanover, Harrismith, Heilbron, Hennenman, Herbert, Hoopstad, Indwe, Ixopo, Jacobsdal, Jagersfontein, Jansenville, Kentani, Kliprivier, Komga, Koppies, Kroonstad, Kudumane, Ladybrand, Letaba, Lichtenburg, Lindley, Lydenburg, Maclear, Madikwe, Marquard, Messina, Mount Currie, Mount Fletcher, Mutali, Ndwedwe, Maphuno, Newcastle, Ngotshe, Noupoort, Paulpietersburg, Pearston, Petrusburg, Philippolis, Piet Retief, Polela, Postmasburg, Reddersburg, Richmond, (NC), Rouxville, Senekal, Smithfield, Soutpansberg, Sterkspruit, Steytlerville, Stutterheim, Theunissen, Trompsburg, Utrecht, Ventersdorp, Victoria West, Virginia, Volksrust, Vrede Vredefort, Warrenton, Waterberg, Weenen, Wepener, Wesselsbron, Willomore, Winburg, Witrivier, Wodehouse

All workers shall be entitled to receive the monthly minimum wage applicable in the magisterial district in which the agricultural enterprise in which they work is located. Where payments in kind are made, a reduced cash wage of not more than 20% below the minimum wage may be paid.( see later in report respect of payment in kind)

Motivation for proposed minimum wages

The table below shows that the current average wage in magisterial districts in Group 1 is R950.00, which is 1/3 above the average for the country, and includes 35.61% of the farm workers in South Africa. The proposed minimum wage for Group 1 is R750.00, or R40.00 per day (or R5.00 per hour) for workers who are not paid on a monthly basis, and so forth for each of the four groups.

Table B: Recommended minimum wages

Group Average Wage(R per Month) % Of CountryAverage Number of Workers Proportion Of total Proposed minimum wage (R per Month) Proposed daily Wage R per day(Hour)

1

950,00

134,

227044

35,6

750

40 (5,)

2

695,00

97,89

164849

25,8

600

35 (4,3)

3

588,00

82,82

84955

13,3

500

30 (3,75)

4

450,00

63,38

160816

25,2

400

25 (3,13)

All

710,00

100

637644

100

650

-

The Table below provides some further background to these proposed minimum wages. The calculations were based on the 1996 Census, thus the proposed minimum cash payments in 2001 had to be deflated to 1996 (3rd column). The average wage in 1996 for that group of Magisterial Districts before and after the introduction of the minimum wage is presented in the next two columns, while the absolute and percentage increase is provided in the two columns thereafter. It is important to note that this absolute and relative increase in average wages represents the minimum expected increase. Farm worker income data were only available in broad income ranges. In all cases only the wages of workers earning from R0-R200 were adjusted. The last column shows how many workers' wages will be affected in each of the Groups. Thus, it is estimated that 10.6% of the workers in Magisterial Districts in Group 1 are presently being paid at a rate below the proposed minimum wage, while almost half (48.8%) of those in Group 4 earn less than the proposed minimum wage.

Table C: The implications of the recommended minimum wage

Group Proposed Cash Minimum Wage Equivalent 1996 amount Average Wage (before) Average Wage (after) R increase % increase Minimum % of workers affected

1

600

456,5

609,2

634,9

25,8

4,2

10,6

2

480

365,2

445,5

498,9

53,3

11,9

17,4

3

400

304,3

377,5

460,1

82,6

21,8

32,1

4

320

243,5

287,7

414,5

126,8

44,

48,8

3. Payment in kind

Most farm workers in South Africa receive a portion of their payments "in kind". In order to build on and improve existing practices, and to prevent the withdrawal of such payments, the sectoral determination needs to define and regulate payments in kind. This should allow for employers to pay a reduced cash wage to workers receiving payments in kind, while setting a minimum cash wage that must be received.

The single largest item of payment in kind is most commonly the provision of accommodation (followed by food). However, the quality is highly variable. The sectoral determination therefore needs to define minimum standards for the purposes of determining whether accommodation provided to an worker may be considered to be payment in kind.
It is proposed that

Accommodation or food provided by an employer to an worker should only constitute payment in kind if it is provided:

  1. by the employer at his or her cost
  2. on a consistent and regular basis as a condition of employment

It is proposed that:

Payments in kind must be valued on the basis of the cost to the employer of supplying goods and services to workers subject to these restrictions:

  1. The total payment in kind may not be deemed to constitute more than 20% of the total wage and
  2. The maximum value of payment in kind to an worker who only receives accommodation or food but not both is 10% of the total wage paid; and
  3. No additional deduction may be made from the worker's cash wage for a payment in kind.

Housing may be considered to constitute payment in kind only if no rental is charged for the house in which the worker is resident and if it meets the following specifications:

  1. a roof which does not leak is in place and
  2. glass windows have been installed and can be opened and
  3. electricity is available inside the house and
  4. water is available on tap inside the house and
  5. a flush toilet or pit latrine is available in, or in close proximity to, the house and
  6. the size of the house is not less than 54 square meters or 10 square metres per adult resident, whichever is greater.

Supply of accommodation may not be a payment in kind unless the worker is ordinarily resident on the farm.

Where more than one worker occupies a single house, and that house is considered to constitute a form of payment in kind, the value of the use of the house must be deducted from the wages of all adult workers resident therein, on a proportionate basis. However an employer may not deduct more than a total of 20% of one worker's wage in respect of the same house.

Housing may not be considered to constitute payment in kind in the case of workers under the age of 18.

The cost of supplying fuel, electricity or water may be included in the cost of accommodation if the worker is not charged for this. Fuel may be considered to be payment in kind, insofar as the employer provides the workers with electricity and/or firewood and/or a flammable liquid fuel. Water provided to an worker may be valued as the average cost of water provision for domestic use by the worker and any dependants of the worker;

4. Sick Leave and Medical Certificates

In many rural areas, access to medical and health services is difficult for farm workers that are compounded by lack of independent transport and public transport (or the financial means to use public transport). The requirement that workers produce a medical certificate to claim sick leave therefore poses practical problems.

In some instances, therefore, it may assist farm workers if the law were to expand the range of health practitioners who are authorised to provide such a medical certificate. At present, levels of qualification among traditional healers and community health workers have not been confirmed within the National Qualifications Framework (NQF). The sectoral determination therefore needs to specify that, in addition to the recognised professions of doctors, nurses and psychologists, traditional healers and community health workers may provide medical certificates. It is proposed that: -

Workers shall be entitled to sick leave on the terms specified in the BCEA, subject to the provision that medical certificates may be provided by any of the following:

  1. amedical doctor/general practitioner
  2. a clinical nurse practitioner
  3. a traditional healer
  4. a community health worker
  5. a psychologist
  6. any other health practitioner authorised to diagnose a medical condition.
5. Working time

In terms of section 9(1) of the BCEA, the normal maximum ordinary working week (i.e. excluding overtime) for an worker is 45 hours in a week. In terms of item 5 of Schedule 3 to the BCEA, for a period 12 months after its commencement the ordinary maximum hours of farm workers were 48 hours.

Section 55(6)(c) provides that a sectoral determination may not reduce the protection afforded to workers by section 9. Accordingly, it is not possible for a sectoral determination to permit an ordinary working week in excess of 45 hours.

Certain aspects of minimum standards in agriculture are still regulated by the Basic Conditions of Employment Act 3 of 1983. These provisions are section 6A (extension of working hours), section 10(2A) (pay for work on Sundays) and section 14(4A) (rights during notice period). These provisions were introduced by the BCEA Amendment Act 104, 1992 with effect from 1 May 1993 following a tripartite negotiation process in the now defunct National Manpower Commission.

Their appropriateness for inclusion in the sectoral determination is considered below. These provisions remain in force until such time as the matters regulated by these provisions are regulated by a sectoral determination applicable to farm workers (item 3 of schedule 3 to the BCEA).

5.1. Extension of Working Hours for Farm Workers

Section 6A of the BCEA of 1983 permits a variation of ordinary hours of work to accommodate seasonal fluctuations in the demand of work. Paraphrased, it provides as follows: -

" a worker and an employer may conclude a written agreement to extend the farm worker's ordinary hours of work by not more than four hours per week for a period not exceeding four months in any continuous period of twelve months provided that the ordinary hours of work are reduced by the same number of hours during a period of the same duration in the same period of twelve months.

the agreement may not extend the farm worker's ordinary daily hours of work to more than ten hours on a day.

the employer must pay the farm worker during any period of extended or reduced hours of work, the wage the farm worker would have received for normal ordinary hours of work.

if the farm worker's employment terminates for any reason at a time when he or she has worked the extended hours but not the equivalent number of reduced hours in terms of the agreement, the employer must pay the worker for the extended hours worked at the prescribed overtime rate."

This section permits an averaging of working hours over a 12-month cycle based on an ordinary working week of 48 hours. It accommodates seasonal fluctuation in the demand for work while at the same time giving the worker a regular income. For the employer, it results in savings on overtime during busy periods such as harvesting.

It is proposed that the above provisions should be retained but adjusted to operate on a 45-hour week. An extension of five hours per week should be permitted. This would allow for an ordinary working week of 50 hours during peak seasons.

5.2. Work on Sundays

Section 10(2A) of the BCEA, paraphrased, provides as follows: -

"1. The employer of a farm worker who is required to perform work on a Sunday in the ordinary course of events must pay the worker an amount calculated in accordance with the following table:

Time worked on a Sunday Payment
Less than 1 hour Double the ordinary wage for one hour
Longer than 1 hour but less than 2 hours Double the ordinary wage for time actually worked
Longer than 2 hours but less than 5 hours The worker's ordinary daily wage plus a ordinary working day off in the following week without remuneration
Longer than 5 hours  The greater of double the wage payable in respect of time worked (excluding overtime) or double the ordinary daily wage plus an ordinary working day off without remuneration in the following week.

This provision was introduced to deal with forms of agricultural work in which workers are required to work for a short period on each day of the week such as milking cows, setting irrigation equipment etc. It represents an exception to the rule reflected in section 16(2) of the BCEA of 1997 that a worker who works on a Sunday (no matter how short the period) is entitled to at least a full day's pay. It is proposed that this provision be incorporated into the sectoral determination.

5.3. Night Work

Section 17 of the 1997 BCEA introduced protections for workers who perform night work. Sections 17(3) - (5) contain provisions that have particular relevance to the protection of the health and safety of workers who regularly perform shifts at night. These provisions require employers to inform workers of the health and safety hazards associated with their work and give the workers a right to a medical examination concerning these hazards. In terms of the BCEA, these protection apply to workers who work for a period of longer than one hour after 23h00 and before 06h00 at least five times a month or fifty times per year.

Item 3(2) of the transitional provisions to the BCEA varies this provision by providing that, until there is a sectoral determination for agriculture, the protection in section 17(3) only applies to farm workers who work after 20h00 and before 04h00 at least five times per month or fifty times per year. The reason for this provision was that it was considered inappropriate to apply the protections in section 17(3) to workers who might start work extremely early to perform functions such as milking cows etc but who do not work night shift.

It is proposed that this provision should be retained in the sectoral determination.

5.4. General considerations

In drafting the sectoral determination, it must be borne in mind that certain provisions in the BCEA are phrased in general terms and their interpretation can give rise to some uncertainties. Where appropriate, the sectoral determination should seek to clarify the circumstances in which agricultural workers are entitled to these benefits.

It is proposed that this be done in respect of the definition of emergency work in terms of section 6(2) of the Act and the circumstances under which workers can be required or permitted to work during their meal intervals (section 14(2) of the Act).

6. Termination of employment

The general rules applicable to termination of employment in the BCEA should apply to the agricultural sector. In particular, this would require that a contract of employment terminable at the instance of a party to a contract may be terminated on notice of not less than: -

  1. one week, during the first four weeks of employment of farm workers
  2. four weeks thereafter.

Presently section 14(4A) of the 1983 BCEA provides rights in respect of accommodation, crops and cattle for farm workers whose services have been terminated. It states that the farm worker shall be entitled:

Three proposals are made in respect of termination of employment.

Firstly, it is proposed that the rights in respect of accommodation during periods of notice should be the same as for other workers in terms of section 39 of the BCEA.

Secondly, it is proposed that the provisions currently included in section 14(4A) of the BCEA of 1983 giving workers rights in respect of cattle and crops should be retained in an appropriate form in the sectoral determination.

Thirdly, it is proposed that the sectoral determination should specifically state that the provisions related to termination do not affect the right of a dismissed farm worker to dispute the lawfulness of an eviction or any other action taken in terms of the Extension of Security of Tenure Act (ESTA).

7. Supply of farm workers by third parties

There is an increasing trend towards" outsourcing" in terms of which third parties supply farmers with their labour requirements. Farm workers supplied by these agencies are a vulnerable group within farm workers and often face particular difficulties in enforcing their rights.

The determination should define and regulate two types of agencies that supply farm workers to farmers. The first of these is " employment" or " labour contracting". This is a person who conducts a business of providing to a client other people to render services or work and who remunerates those people.(This category is referred to in the Labour Relations Act and Basic Conditions of Employment Act as "temporary employment services", although its scope is not confined to people who provide temporary workers.)

The employment service and the client are jointly and severally liable to comply with the relevant labour legislation. Thus, where the employment service does not pay the workers concerned, the client becomes liable for that obligation. This has resulted in farmers using the services of reliable employment services that comply with the legal obligation in the law. It is proposed that the determination should explicitly provide that if the employment service is in default of its obligations to remunerate the workers for a period of 30 days, the client concerned becomes liable to make the payment.

The second category of agencies that supply labour are what are termed" labour brokers". They differ from employment services in that, while they conduct a business of providing workers to employers, they do not remunerate employees and thus are not employers. In this case, the client is the employer and pays remuneration to the workers concerned. This category of labour supply is not regulated by either the Labour Relations Act or the Basic Conditions of Employment Act. It is proposed that the Sectoral Determination should regulate it and that the joint and several liability should apply between the employer and the labour broker. This would prevent labour brokering from being used as a device to avoid compliance with the law.

8. Small businesses and new enterprises

While the research did not look specifically at the impact of minimum wages on small businesses and micro-enterprises, there was an assumption that a significant number of agricultural workers are small. In particular, the position of small farmers (farmers on communal lands in the former homeland areas, and beneficiaries of the land reform programme) needs to be accounted for.

Thus, it is proposed that the minimum wage should not apply to all employers who employ five or fewer workers throughout the year. However, all employers should comply with the basic conditions of employment recommended here, regardless of how many people they employ.

In practice this will mean that virtually all of the small farmers, whether on communal lands or under the land reform programme) will be exempt from paying minimum wages. At the same time new entrants who are start on a small scale will also be exempt in practice.

9. Special measures for vulnerable groups

Our research has shown that female, the youth and foreign workers constitute the most vulnerable groups among the farm labour force. Yet it is not easy to protect their interests through the provisions of labour legislation in the absence of effective enforcement mechanisms. The following is proposed:

10. Exceptions and time period before implementation

Our recommendations cover a minimum wage for each of four groups of Magisterial Districts in the country. However, we are aware that conditions can vary greatly within a Magisterial District. Therefore, we propose that:

A six-month period should be allowed between the time of promulgation of these recommendations and their coming into force. During this time appeals should be made to the Employment Conditions Commission to regroup Districts where there is sufficient evidence that this is justified in terms of the criteria used to make these recommendations.

In addition, any farmer can utilise the variation provisions spelt out in Section 50 of the BCEA. In terms of these provisions, an individual farmer or group of farmers who can prove hardship can be given a variation for a defined period.

11. Enforcement

Our field research has shown that existing labour legislation is rarely enforced on farms in South Africa. Enforcement is more likely to occur in those rare cases where workers are unionised. Due particularly to the geographical distance that separates farms from each other and urban centres, conventional mechanisms provided in labour legislation are very difficult to apply.

There are at least four current initiatives that could assist in implementation, but without placing too large a burden on the thinly stretched resources of the State. These include:

The Minister of Labour has recently launched an initiative together with major national employer organisations and trade unions entitled: "Vision for Agricultural Relations". It sets out a commonly agreed vision for labour relations on farms as well as implemaletation steps. This initiative can also assist in respect of improving enforcement.

It is proposed that the Department of Labour at a national, provincial and local level should liase with all relevant parties to the above mentioned agreements in order to find synergies in the enforcement of agreed conditions of employment. This should include participation as neutral experts in deliberations where the parties request their participation. In taking this initiative the Department should encourage all parties to make special provision for the position of female as independent labourers in their own right.


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