Farm workers’ right to family responsibility leave

South African labour legislation provides employees with a multitude of different entitlements to leave including annual leave, sick leave, family responsibility leave, maternity leave, parental leave, adoption leave, commissioning parental leave and study leave. However, there still seems to be many employees that confuse family responsibility leave with other forms of leave, as well as when they are entitled to take family responsibility leave.

Employers in the agricultural sector regularly have queries regarding farmworkers who insist on combining family responsibility leave with other forms of leave, e.g. taking either family responsibility leave and/or sick leave to attend to their children’s routine clinic or hospital check-ups.

Mythbusters #1 & #2:

1.  A farmworker is not entitled to paid family responsibility leave to take a child for a routine check-up visit to a clinic.

2.  A farmworker cannot utilise his/her own sick leave to take a child for a routine check-up visit to a clinic.

Family responsibility leave

Family responsibility leave is a leave entitlement contained in labour law that allows an employee to attend to certain specified familial responsibilities, such as if the employee’s child, or adopted child, is ill. Whereas sick leave allows the employee him-/herself time off from work to recover from an incapacity which renders them temporarily incapable, or medically unfit for work, due to illness or injury.

Mythbuster #3:

3.  A farmworker is not entitled to take family responsibility leave with the birth of their children.

Approximately four years after the law has changed, this popular misconception still exists. Previously the law made provision for an employee who was the spouse, or life partner of a person giving birth to a child, to take three days’ family responsibility leave. However, the law has since changed to allow for the inclusion of other forms of leave. As from the 1 January 2020 farmworkers (other than their spouses/life partners who are on maternity-, adoption- or commissioning parental leave) are no longer entitled to the three days’ family responsibility leave for the birth of their child but are now entitled to unpaid parental leave.

Currently the Basic Conditions of Employment Act (as amended), more commonly known as the BCEA, read together with the Sectoral Determination number 13 (applicable to the agricultural sector), is the main legislative authority on the law surrounding family responsibility leave for farmworkers.

Requirements to qualify for family responsibility leave

In essence the law currently provides that farmworkers are entitled to three days’ paid family responsibility leave per annual cycle, provided that they have been employed for a period of longer than four months and work at least four days per week for the employer.

Family responsibility leave may be taken in full or in days, as it is needed. In the event of a farmworker requesting family responsibility leave, the employer may require reasonable proof, such as a medical or death certificate.

Employers are only required to grant farmworkers paid family responsibility leave, if they have sufficient family responsibility leave left, and only in the following instances:

• When the farmworker’s child is ill; or
• In the event that anyone of the farmworker’s below-mentioned family relatives should pass away:
  • the farmworker’s spouse/life partner,
  • the farmworker’s child/adopted child,
  • the farmworker’s parent/adopted parent,
  • the farmworker’s sibling,
  • the farmworker’s grandparent,
  • the farmworker’s grandchild.

Setting a precedent

The employer does have the discretion to allow for more time off, or to allow a farmworker to take other forms leave such as annual or special leave, which could be paid or unpaid leave, if the farmworker’s family responsibility leave entitlement has been exhausted. However, if the employer does grant additional paid leave in these instances, it can be viewed as an additional benefit to the farmworker, and which might also set a precedent in the workplace and therefore the employer should take care to act consistently in granting similar benefits towards all employees.

By clearing up these misconceptions, we can promote a better understanding of the rights and entitlements of farmworkers in South Africa, ensuring that both employers and employees in the agriculture industry receive fair treatment and support to balance their work and family responsibilities.

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