1. Inspections and Enforcement Services
FARM WORKERS
Department of Labour
Inspections and Enforcement Services
16 NOVEMBER 2016

2. Table of Contents
Inspections and Monitoring of labour practice on farms (and opportunities for coordination)
The impact of connection of labour and tenure rights (dilemma of place of work and residence) and policy constraints
Summary of key findings on farm inspections and key recommendations
Legal services for labour disputes 2

3. Context
The Department of Labour is responsible for all labour laws governing the employment of employees at workplaces, including farms.
The Department conducts farm inspections every year and considers the farm worker to be within the category of a vulnerable worker.
The inspector is required to look into the issue of accommodation for farm workers but only with regards to the farm worker paying rent for the accommodation.
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4. CONTEXT CONT...
Extension of Security of Tenure Act (ESTA) (No. 62 of 1997) issues are not looked into by the inspector. In such instances, the inspector is advised to forward all such queries to the relevant Department for action.
There are however overlaps in general respect for example: ESTA says water must be provided for the worker and so does the Sectoral Determination(SD). ESTA talks about damages and the settlement thereof (deductions), so does the SD in more certain terms. There is no real or significant change to this aspect in the new amended Bill.
As there are several Departments that need to engage farmworkers, and given the difficulty and cost in relation to transport for farm workers, it would be prudent for government Departments to have joint awareness sessions periodically in the various Provinces.
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5. What DoL is doing?
The Department of Labour does engage various parties and have formed structured relationships in some instances, in some Provinces.
These relationships however do not always bear the fruit expected for a variety of reasons, a typical example is that some of these bodies have farm owners sitting on their Boards which could give rise to conflicts of interest.
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6. What DoL is doing?
Both the Minister of Labour and the Deputy Minister of Labour have been actively involved in the last 12 months in the farm sector in Mpumalanga and the Western Cape, respectively through roadshows.
This notwithstanding the inspections carried out.
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7. Challenges
The Department of Labour does occasionally struggle to access farms where farmers are obstructive.
In such instances, the Department is expected to seek the assistance of Agrisa to gain entry or, alternatively, to obtain the assistance of the SAPS to gain entry.
There are however also other legal instruments, to deal with this.
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8. Challenges...
Access to farms remain a challenge for inspectors. This is an unacceptable situation in a sector with vulnerable workers.
Non-compliance still remains a concern on some of the farms where employers show a total disregard for labour laws.
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9. Definition of: “farm worker” according to the Sectoral Determination (SD) 13 ...

10. Definition of: “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;
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11. Inspections and Monitoring of labour practice on farms (and opportunities for coordination)
The Department does monitor compliance on farms in South Africa and has in place a Sectoral Determination ( viz: SECTORAL DETERMINATION 13: FARM WORKER SECTOR, SOUTH AFRICA) that regulates the market specifically.
That is, the Sectoral Determination determines specific conditions in the sector outside but not in conflict with the Basic Conditions of Employment Act. 11

12. Inspection and monitoring of labour practices in the farms
The Department of Labour engages employers on accommodation issues only where the farmer is charging the employee rent... as indicated. This however has nothing to do with Land Tenure issues.
Where rent is charged by the farmer, the dwelling must comply with the requirements laid down in the Sectoral Determination, for example, where the dwelling is leaking as a result of rain, the farmer must cease to take rent up until such time the fault is corrected.
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13. Basic Human Rights and Human Dignity
Those essential basic human needs, that touch on the human dignity of the citizens of the Republic of South Africa are provided for in the Sectoral Determination.
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14. Extracts from Sectoral Determination 13 relating to deductions and more specifically ... accommodation

15. Clause 8(1) of the SD 13 states:
An employer may not make any deduction from a farm worker’s wage except –
(b) a deduction not exceeding 10 percent of the farm worker’s wage made in accordance with sub-clause (4) for accommodation in which the farm worker ordinarily resides; 15

16. Clause 8(2) of the SD 13 states:
An employer may only make a deduction in respect of accommodation and/ or food in terms of sub-clause (2)(a) or (2)(b) respectively if –
(a) the food or accommodation is provided free of charge by the employer to the farm worker at the employer’s cost;
(b) the food or accommodation is provided on a consistent and regular basis as a condition of employment;
(c) no additional deduction is made from the farm worker’s remuneration for food or accommodation; 16

17. Clause 8(2) continued...
(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. 17

18. Clause 8(3) of the SD 13 states:
A deduction in terms of sub-clause (1)(b) may only be made for a house that meets the following requirements:
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 if the infrastructure exists on the farm; 18

19. Clause 8(3) continued...
(d) safe water is available inside the house or in close proximity, which is not more than 100m, from 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. 19

20. Clause 8(4) and 8(5) of the SD 13 states:
(4) An employer may not make any deduction for accommodation in terms of sub-clause (1)(b) 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)(b) in respect of one farm worker residing in any house. 20

21. Clause 8(6) of the SD 13 states:
(6) (a) Subject to sub-clause (1)(b) 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.
(b) An equal amount must be deducted in respect of each of the farm workers residing in accommodation contemplated by paragraph (a). 21

22. The impact of connection of labour and tenure rights (dilemma of place of work and residence) and policy constraints
The SD 13 is clear on this matter and the inspector is expected to ensure that this matter is addressed when doing farm inspections.
The inspector does not attend to land tenure matters as this falls outside of their scope.
Such matters should be referred or addressed during joint roadshows between various Government Departments.
Knowledge has been found to be seriously lacking with farm workers on the Land Tenure matter and there is a need for periodic roadshows to address this lack among others. 22

23. Summary of key findings on farm inspections and key recommendations
The following are some findings resulting from inspections conducted in the two Provinces:
incorrect deductions
overtime not properly captured
hours of work not in line with the SD
Payslips do not capture everything
conditions of accommodations that is atrocious
equipment used does not meet the safety standards 23

24. An extract of compliance levels for two provinces for 2015/2016 (monitoring done earlier this year)

25. Western Cape

26. WESTERN CAPE
There were 110 Basic Conditions of Employment Act inspections conducted with a 71% compliance level.
# of inspections
# complied
# not complied
110 78 32
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27. Mpumalanga

28. Compliance levels – 2015/2016 BCEA compliance levels - 83%
OHSA compliance levels – 0%
# of inspections
# complied
# not-complied
791
653
138
# of inspections
# complied
# not-complied 5 28

29. Compliance levels – 2015/2016
EEA compliance levels at 65% and DG reviews were at 0%
UIF compliance levels – 45%
# inspections
# complied
# not complied 17 11 6 9
154 70 84 29

30. Figure: Distribution of Farms in Mpu
Source: Database supplied by MP Labour Centres 2015 30

31. Legal services for labour disputes
The Department of Labour does offer services to workers including farm workers at various Centres in the Regions.
In addition to this, the Department does have vehicles that travel to various areas during the course of the month at set times.
Certain aspects of the labour laws fall within the ambit of the Department’s inspectors, while other fall within the ambit of the CCMA. For example,unfair dismissals. 31

32. Liaison with relevant bodies
The Department does liaise with various bodies engaged in the Agricultural sector at a national and/or Provincial/Local level.
In the case of Provincial/Local level, these engagements are to sort out day-to-day dynamics that may arise.
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33. Recommendations
The continuous engagements with the farming structures that exist within the province to assist in improving the compliance levels.
Conduct more awareness sessions with all stakeholders (employers, employees) on all legislation.
Government Departments must coordinate activities as this will allow the farmworkers to save money on traveling and will also ensure that farmworkers are addressed once on all issues. 33

34. Recommendations
The Department of Labour must co-ordinate responses to the responsible Department where inspectors have raised issues after inspections.
Co-ordinating meetings must take place at least every six months to ensure this vulnerable sector is adequately serviced.
Farmers and farm workers must see Government operating with structure in order to give a clear message.
Synergy in terminology between the two pieces of legislation
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35. References Mpumalanga Province IES Report
Western Cape Province IES Report
Department of Agriculture Forestry and Fisheries, 2013 Report 35

36. Thank You… 36