The Inspection and Enforcement Services unit conducts these inspections with the view to enforce all labour laws in order to promote sound labour practices and improved working conditions, including the implementation of the new minimum wages for farmworkers. South African labour matters are regulated by ten laws, the most important for this article being the following:
- National Minimum Wage Act, 9 of 2018;
- Basic Conditions of Employment Act, 75 of 1997 (the BCEA) in conjunction with Sectoral Determination 13 for Agriculture;
- Employment Equity Act, 55 of 1998;
- Compensation for Occupational Injury and Disease Act, 130 of 1993;
- Occupational Health and Safety Act, 85 of 1993; and
- Unemployment Insurance Act, 30 of 1996.
Labour law inspections
In terms of section 63 of the BCEA the Minister may appoint or designate any person in the public service as a labour inspector, or designate any person who is an agent of a bargaining council, to perform the functions of a labour inspector. The Minister must provide each labour inspector with a signed certificate in the prescribed form stating that the person is a labour inspector, under which legislation that inspector is authorised to monitor and enforce the legislation, and which of the functions of the labour inspector that person may perform.
The labour inspector has the authority in terms of section 65 (1) of the BCEA to enter relevant workplaces, which includes farms, without warrant or prior notice, at any reasonable time, for the purpose of monitoring and enforcing compliance with the Act. If necessary, the inspector may obtain written authorisation from the Labour Court to ensure that an employer permits him access to the premises.
During an inspection, inspectors can question any person on the farm, including employees. They may request various documentation which includes employment contracts (whether permanent or fixed-term), payslips, the attendance register and personnel files of each employee. They may also check that the BCEA, Occupational Health and Safety Act and Employment Equity Act are on display at the premises, and that a copy of Sectoral Determination 13 is available for inspection by the employees (section 58 of the BCEA).
Sectoral Determination 13 regulates the basic conditions of employment and remuneration of farmworkers in South Africa. Amongst the basic conditions of employment that it provides for, such as working hours, leave, termination of employment and deductions from salaries and wages, it also provides for minimum wages, as well as rates for farmworkers to which all employers of farmworkers must comply. Importantly, these rates must be included in their employment contracts.
On 17 February 2020, the Minister of Employment and Labour amended Schedule 1 of the National Minimum Wage Act which resulted in the increase of the national minimum wage from R20.00 to R20.76 for each ordinary hour worked and R18.00 to R18.68 for farmworkers.
Immigration law inspections
South Africa is a popular destination for migrants in search of better socio-economic opportunities. Consequently, there is a need for the Department of Home Affairs to conduct inspections to ensure compliance with labour laws. Section 38 of the Immigration Act, 13 of 2002 provides that no person shall employ an illegal foreigner; a foreigner whose status does not authorise him or her to be employed by such person; or a foreigner on terms, conditions or in a capacity different from those contemplated in such foreigner’s status. It is your responsibility as an employer to make a good faith effort to ascertain the status of each person who is in your employment.
Repercussions of non-compliance
Section 49 (3) of the Immigration Act makes the violation of section 38 a statutory criminal offense and, on conviction, punishable by imprisonment not exceeding 1 year or a fine; on a second conviction 2 years imprisonment or a fine; and on a third conviction imprisonment not exceeding 5 years without the option of a fine. Fines can range from R7 000 to R50 000 per person depending on the contravention.
Non-compliance with labour laws also has repercussions. If a labour inspector has reasonable grounds to believe that an employer has failed to comply with any provision of the BCEA, he must endeavour to secure a written undertaking from the employer to comply with that provision or alternatively issue a compliance order. These compliance orders may also be made an order of the Labour Court where the employer has failed to comply with the order, and has failed to launch an objection against the order. Non-compliance may lead to fines being imposed and even imprisonment.
It is therefore in the farmer’s best interest to ensure that his/her farm complies with all the relevant labour and immigration laws to avoid paying fines or possible imprisonment.
Compliance checklist
Farmers are therefore advised to assess their compliance by asking themselves the following questions:
- Have I displayed a summary of the Basic Conditions of Employment Act?
- Are my farm workers’ conditions of employment in line with Sectoral Determination 13 and is a copy available on the premises for the workers to inspect?
- Do I have a copy of the Occupational Health and Safety Act and the relevant Regulations on the premises, and are the Act and the Regulations available to the workers if they want to read it?
- Am I registered with the Unemployment Insurance Fund?
- Am I registered with the Compensation Fund?
- Are my workers and I trained to recognise health and safety problems?
- Do I have an attendance register at my workplace?
- Do I report injuries at work to the Department of Employment and Labour?
- Do all of my foreign workers have valid work permits?
Copies of the labour legislation and the Sectoral Determination 13 can be downloaded from the Department’s website at www.labour.gov.za.
Contact VDT Attorneys for assistance with any employment law matters.
012 – 452 1300 |info@vdt.co.za |www.vdt.co.za
