Protecting Vulnerable Workers in the Agriculture Sector

Protecting Vulnerable Workers in the Agriculture Sector 2010 CCMA COMMISSIONERS INDABA “Against all Odds” Ritz Hotel 2 – 4 December 2010

Executive Summary • Summary of events that have unfolded in this area: • The recent National Farm Worker Summit (July 2010); • the Human Rights Commission Report on Farm Workers (2008); and • the Land Summit (2005) • all of above spoke to unfair evictions of farm dwellers, as well as evictions of farm workers using the very legislation meant to secure their tenure (ESTA). There have been repeated reports of collusion between farmers, SAPS and magistrates that result in farm dwellers being evicted in their tens of thousands from farm lands, adding to the growing urban informal settlement problems (shacks and slums).

Sources of information • CCMA statistics regarding dismissed farm workers; • outcomes of referrals; • reinstatements and • enforcement of awards in this vulnerable sector. • President Jacob Zuma stated at the recent Farm Worker Summit that this sector remains the most vulnerable with regards to protection of workers’ rights.

Statistics • CCMA statistics do not reflect the total picture regarding dismissals of farm workers, rather just those dismissals that have been disputed in terms of the LRA. • Anecdotal evidence suggests that only 1 in 3 dismissals are normally disputed by workers, and that this ratio could be even higher in this vulnerable sector. • (eg. of the approx. 9000 farm worker jobs lost in Mpumalanga in 2009/10, only 440 were disputed, a ratio closer to 1:20). • In total, 4438 disputes were referred to the CCMA, an average of 370/month. • 70% of all jurisdictional referrals are settled by agreement, either before conciliation, in conciliation, or at arbitration. • Figures show that by far the majority are settled on some form of monetary settlement, not reinstatement or re-employment.

Of the 834 cases arbitrated, 625 awards stand (the rest being rescinded or overturned at Labour Court). • Of these, 26% (163 cases) were default issued in the absence of the farmers. • 51% were in favour of the farm worker/s • 49% were then found to have been fair dismissals. • 81% of awards in favour of the workers resulted in only compensation being ordered, despite reinstatement being the primary redress. • Only 39 workers (6%) were reinstated by award across the whole country over the 12 month period under review. • At an average of only five dependants /pay packet, it can be said that at least 10,000 farm dwellers (50% of 4000 x 5) lost their security of tenure (right to stay on the farm linked to employment) during 2009/10.

Default awards range from 51% (FS) to 9% (MP) across provinces Awards in workers’ favour range from 72% (LP & FS) to 26% (WC) Compensation rates range from 94% (GAJB) to 59% (MP) Reinstatements rate range from 27% (EC) to 0%(GATW)

Concerns: • In total 66% of awards needed to be enforced (s’143 of the LRA) • This necessitates these vulnerable, unfairly dismissed workers incurring additional expenses and effort to secure their rights. • The delays in final resolution, the hardships incurred through these processes and the human right to dignity and fair labour practices that are trashed through these process all add to the socio-economic tensions felt in our communities. • Farmers are also disadvantaged in some instances, being subjected to CCMA processes although their employment practices may be correct, compliant with the relevant labour legislation. • The fact that approx. 25% of awards issued are rescinded highlights administrative or process shortcomings in our dispute resolution system as it is currently practiced. • It appears that our dispute resolution process as applied to this sector is not meeting the needs of farmers, farm-workers, farm dwellers or society in general.

4: Proposals: • These statistics paint a picture of a complex human rights and socio-economic mix of factors that are not satisfactorily addressed under current practice. • It is suggested that the complexities that arise from the link of employment contracts and security of tenure rights in this sector be recognised for what they are – complex situations that require professional, experienced and focused insights to resolving the issues surrounding what otherwise may have been a normal, everyday labour dispute

To address this, the following are proposed Establishment of a panel of commissioners trained specifically to deal with these complex issues A process similar to the pre-dismissal arbitration (renamed?) could be compulsory for all agricultural sector disciplinary or capacity issues that could result in dismissal – with the issues referred by the farmer to the CCMA. The use of legal representatives should not be allowed, only union and employer organisation officials. An award would be binding subject to Labour Court review, ie no conciliation and/or arbitration processes. On a finding of guilty and termination of contract, the panellist would then preside over the issues of tenure; determining on-going tenure if applicable; crop and grazing rights; burial and visitation rights; notice periods; compensation for crops in field etc

Benefits: Agriculture employs approx. 850,000 workers in the commercial segment of this important sector. Fairness, or perceptions of fairness, is critical to rural development and economic growth of this sector – a sector seen by government as a pillar upon which job creation opportunities are to be maximised. Coupled with an awareness programme designed to increase knowledge of workplace rights and responsibilities in the sector, this customised approach to workplace discipline and security of tenure linked to employment contracts can only improve the stability of the sector and the people living and employed therein.

Protection of Vulnerable Worker Rights:Agriculture Sector A case study:- Hendrik Luka

This is the story of Hendrik Luka. Hendrik worked for 23 years for his employer, Boelie Bothma, on the farm Bospre, District of Brandfort. Hendrik has just been called by his employer and accused of theft of a bag of maize kept for feeding purposes. Hendrik denies the allegations.

Labour Centre Boelie Bothma Labour Centre Labour Centre Labour Centre Labour Centre Labour Centre Labour Centre Labour Centre Labour Centre Labour Centre

Hendrik. I know you stole the bag of maize. The bag in your house is from Brandfort Mill where I bought my maize No ntateBoelie. Here is my proof. I bought maize there on payday. Hendrik. You are lying to me. You are fired!!! But Ntate I did nothing wrong

Mary, I have been dismissed. The reason is that …. But what are we going to do? Don’t worry Mary. I will go to Bloemfontein tomorrow. I did nothing wrong. But how will you get there? Our Food is finished. Please bring us some when you return? Here is my outstanding money. I will walk the 20 kilometres to town and get a taxi. I do have R1000

Taxi to Bloemfontein R60.00 Money left = R940.

Hello Me. Can CCMA Help me…… Hello sir. Let me help you complete the form What is your Employer’s address? Farm Bospre, Brandfort. Here is your referral form. Send it by registered mail to your Employer. Then bring the form back

Here is the form Me. Registered mail is so expensive. R28. Thank you Mr Luka. You will be notified of date of your case

Registered mail R28 Taxi to Brandfort R60.00 Groceries R600 Money left = R252

Mommy where will we live if we leave? Don’t worry my child. We won’t leave. Daddy did nothing wrong But how do you know mommy? Daddy made a case at the CCMA my child What is CCMA mommy? That is a place that helps workers if they are not treated correctly. Remember daddy did nothing wrong. Mommy, I like CCMA. Me too my child.

Mother, I am going for my case at the CCMA today Here is some food for you and dad. Don’t worry mom. I did nothing wrong. By tonight everything will be ok. Here is R100 for you and dad But son, you are unemployed. Save your food. Thank you my son. You are the only person supporting us.

Hendrik is now informed that there has been an objection to con-arb. BoelieBothma is not present, but sent his Representative from AEO. The matter cannot be arbitrated. A proposal to settle on a months salary is refused by Hendrik as he has done nothing wrong. Taxi to Bloemfontein R60.00 Money left = R92.

Taxi to Brandfort R60.00 Money left = R32. My child, we will have to eat sparingly now. We don’t have any more money for food

I have decided to buy this food with the remaining R32. Yes how? But Your case is tomorrow. How will you get there? Don’t worry. I will leave tonight. I have walked to Bloemfontein Before

This road is so long. I know I will win my case. My family is so hungry. I have done nothing wrong. How can this happen to me

I have to push. Two more Arbs to go. Good morning gentlemen……. Could we try and settle the matter trough conciliation? We would like to settle madam commissioner Yes if it will help me madam. I really have done nothing wrong

I am so hungry Mr Luka here is the final offer from the employer. 3 Months salary. I think you should take this. What you have said would not really convince me of your innocence. Anyway, would you want to go back and work for the employer. I am sure he will victimise you. But I have done nothing wrong!! Remember the evidence is against you. The employer showed proof that he bought maize at Brandfort Mill. Remember, if you don’t accept, I must arbitrate the matter and you may get nothing

I am so hungry Mr Luka, the employer cannot trust you anymore. He does not want you or your wife on the farm anymore. He is prepared to pay you six months salary if you accept and agree to leave the farm by the end of next month. Madam, I need my work. Over and above this you can also claim your UIF benefits for 8 months. Ok madam I accept. My family and I are very Hungry

I really did nothing wrong. At least I have enough money to move to town and buy a shack. My family can eat and I am sure I will work soon because I did nothing wrong

Protecting Vulnerable Workers in the Agriculture Sector