SIZA hosted its annual social auditor training from the 21st to the 23rd of April via a live and interactive online webinar. During the webinar some interesting topics were addressed. Insights were given from an industry’s perspective, buyer’s point of view, as well as experts within a particular area/topic. Over the three days, some important topics were discussed and highlighted. With the help of experts, please see the answers to the questions below. Thank you to Francois Brink (Skyvines), Henk Jooste (Skyvines) and Ninon Swart (Bloem, Swart & Associates) for their inputs and expertise in answering the questions.
What happens when a Temporary Employment Service (TES) has a valid SIZA audit in place?
In any event where a SIZA member conducts an audit at a facility that makes use of a TES, and the particular TES has a valid SIZA audit in place, the auditor will not include those employees in the scope of the interview samples. The auditor will however continue to evaluate the monitoring system which is required to be in place by the facility in terms of the SIZA Social Standard, code requirement 2.8: “The business must establish appropriate procedures to evaluate labour suppliers in terms of their ability to meet the requirements as laid down by the business policy.”
In the case where the TES does not have a valid SIZA audit in place, the audit team will need to arrange for the TES to be present during the SIZA audit for the particular facility and include the workforce as part of the interview and review sample. This should be arranged during the scheduling process and the TES workforce will be included in the total workforce number.
Is a shower required if there is running water within 10 meters of the chemical storage facility?
According to the Hazardous Substance Chemical Regulation 1995 Section 11 (6) (a), adequate washing facilities which are readily available must be provided by the employer. The intention of the relevant section is to ensure that employees can meet a standard of personal hygiene consistent with the adequate control of exposure and to avoid the spread of Hazardous Chemical Substances. According to the General Safety Regulation, 1986 Section 3 (9) a fast-reacting deluge-shower with clean water or a similar facility must be provided to employees if the employees concerned is exposed or can be exposed to a potential hazard of injury or absorption through the skin because of sudden contact with a large amount of toxic, corrosive, high risk or similar hazardous substances (such as the substances used on farms). According to SANS 10206 Section 8, a safety shower must be available and in easy reach if contamination with chemicals has taken place. Under section 8.2 the standard stipulates that where possible, running water shall be used for washing and when running water is not available, each operator must be provided with separate, clearly marked containers for washing of the body and of protective clothing and equipment.
If running water is available near the chemical storage facility, it would be expected that a shower is made available to employees. This shower is intended to be used as an “emergency” shower if there is any accidental contamination. Based on SANS 10206 Section 8.3, which stipulates that each operator shall wash or shower at the end of each operation or shift, the shower will also then be used as a normal shower for washing purposes. Only if there is no running water available near the chemical storage facility will it be acceptable if each operator is provided with separate, clearly marked containers for washing of the body and of protective clothing and equipment – in which case water will have to be made available to the workers through a safe remote water source. If there is no running water available, an elevated punctured water container could also be used in case of emergency contamination (Ref: SANS 8.1). If running water is available, even if it is a considerable distance away from the chemical storage facility, shower facilities should be provided. Example: The shower facility is located 200 meters away from the chemical storage facility because it is located at the nearest running water source. In this example it will be reasonably practical and understandable that the shower facilities are not located close to the chemical storage facility. There is no legal basis, based on the regulations and standard mentioned, to conclude that no shower facility is required as long as running water is available within 10 meters of the chemical storage facility.
Conclusion:
- If there is running water available in close proximity to the chemical storage facility, there would be no reason to justify the absence of adequate washing and shower facilities which should be used in the case of emergency contamination and washing after chemical application.
- If there is no running water available close to the chemical storage facility and it would not be reasonably practical to install the water infrastructure, then the following minimum requirements will have to be met:
- Elevated punctured water container to be provided and to be used in the case of emergency contamination.
- Each operator must be provided with a separate, clearly marked container for washing of the body and of protective clothing and equipment.
- Adequate supply of water to be available which should be from a safe remote water source.
Is a deduction for communal accommodation “per roof” or per room?
Where more than two employees reside in communal accommodation, the employer may deduct a total of 25% of the minimum wage of all employees sharing the communal accommodation and not deduct 25% for all employees sharing a room. The employer must deduct an equal amount for each such farm employee in communal accommodation and the deduction to be made from each such farm employee may not exceed 10% of that farm employee’s wage. The key is rests with communal accommodation and not communal rooms.
What is the producer’s legal obligation when workers are transported by specific taxi companies? Who is liable in case of accidents?
The taxi owner will be liable. No legal obligation will be placed on the farmer/employer. In terms of a good practice, it will be recommended that due diligence checks and Service Level Agreements are in place between the employer and the taxi company, stipulating the necessary requirements to be in place.
Fire Safety: It is not always practical to establish risk and raise a finding when “Long Hostels” are observed that only have one entrance/exit. Should a finding be raised in terms of fore safety as it is not practically possible to add an additional door/entryway.
Refer to SIZA Fire Safety Guide which established that if the distance is less than 45m, no emergency route is required. Where the travel distance is more than 45m, two or more escape routes should be made available as far apart from each other as possible. Where a building has a population of more than 25 persons, and the escape route exceeds 35m, an additional emergency route must be made available. Where the population of any room is not more than 25 persons, the clear width of any exit door shall be not less than 750mm. Where two or more doors are required, they shall be positioned as far apart as possible. South African National Standards: The application of the National Building Regulations – Part T: Fire Protection (SANS 10400-T).
To whom does the responsibility fall when it comes to the cleanliness and hygiene of employee accommodation?
The responsibility of hygiene and cleanliness falls upon the occupant. It will be the occupants’ responsibility to ensure their room/house/living area is clean and hygienic. There is however a responsibility on the owners/management of the business providing the accommodation to ensure adequate oversight to ensure there are measures in place to ensure cleanliness and hygiene, especially where hygiene of employee accommodation could potentially pose a risk to other occupants or nearby accommodation. Management will have a responsibility to take reasonable measures and take action where required.
Can 20 litre plastic and metal chemical containers be stored directly on the floor?
According to SANS 10206 Section C.3.3.2 & D7.6 it is explicitly stated that pesticides in fibreboard boxes, paper bags and fibreboard drums must not be stored directly on the floor or stacked against a wall and should be stored on pallets. There is no legal requirement for plastic and metal drums/containers of a capacity of 20L or more to be stored on pallets and by definition they could then be stored directly on the floor.
The following aspects related to the storage of drums/containers is important:
- Should be stored according to colour coding.
- Should not be stacked more than two tiers high.
- Should be stored in a way which will ensure free movement of persons in the chemical store.
- Should also not be stored directly against a wall.
Should the door of a chemical store be made from steel or can a wooden door be painted with fire resistant paint?
According to SANS 10206 Section D.4.6.1 doors of chemical storage facility should preferable be made from steel and not wooden doors. The Standard does not explicitly exclude the usage of wooden doors, it simply states that steel doors are preferable to wooden doors. The purpose of steel doors is to ensure that a fire resistance time can be achieved of 120 minutes in case of fire. In the case of wooden doors, the same must be achieved.
Conclusion:
- Wooden doors may be used at chemical storage facilities.
- The door must be able to achieve 120 minutes fire resistance time in case of fire.
- In order to achieve the fire resistance time, the door will have to be painted with Fire retardant paint and/or intumescent coating.
- Specifications of paint or intumescent coating to be available during inspection to verify requirement.
- Maintenance of door (repainting or recoating) to be conducted in line with manufacturers recommendations.
It is sometimes noted that employees stand on the back of the slow-moving trailer with full crates as it is deemed by the farm not practical for employees to walk all the way back to offload the crates. Would this practice be acceptable?
The first step will be to evaluate whether this practice is covered and adequately evaluated in the business’ risk-assessment. The measures and practice must be reasonably practical. In cases such as these, there is no pertinent legislation establishing acceptable practice, and therefore the auditor (and the business) will need to do an adequate evaluation of the practice. In some cases, it may be very dangerous (reckless driving, too many employees, condition of the road, slopes, weather etc.). In other cases, it may be acceptable (employees sitting down, limited number of employees, clear procedures regarding speed, training to passengers and drivers on practice, etc.). The business must be evaluated in terms of how the business analysed their potential risk and what precautions have been put in place. The critical point will be when no measures are in place and management is not aware of the potential risk. The auditor should evaluate the risk-assessments, analysis, previous incidents and injury records, H&S meeting minutes and utilise employee interviews to establish potential risk.
When is a stacking permit required?
According to General Safety Regulation 8 – Stacking of Articles, section 4 (b), containers of a regular shape and size which can be safely stacked, may be stacked with the sides of the stack vertical if the total height of the stack does not exceed three times the smaller dimension of the underlying base of the stack. Section 5 stipulates that stacks which are built with the aid of machinery may be built to a height and in a manner permitted by the nature of the containers being stacked with the approval of an inspector.
Section 5 makes provision for an inspector to provide the required permission to exceed the requirement stipulated in Section 4 (b) which states that the total height of the stack does not exceed three times the smaller dimension of the underlying base of the stack. In the case of harvesting bins, bins stacked higher than 4 exceeds the requirements of section 4 (b) and approval must then be obtained from the inspector — the same applies to pallets being stored.
When workers are contracted for 9 hours per day, and they perform piece work for only 5 hours per day, must they be paid for 5 hours or 9 hours?
This is going to depend on how the contract is specified. If the employee is employed and remunerated for hours worked, he/she will be paid for the hours worked. Piece work should not be the determining factor to calculate wages for hours worked. The contract must clearly stipulate that the employee is paid only for hours worked. Production bonus only applied for extra work performed over and above the normal working hours.
If the employment contract makes provision for the Extension of Ordinary Working Hours, as allowed for by SD13, does this mean it is acceptable that 45 normal hours must first be worked in full, before any applicable overtime will be payable?
Yes, if the employee’s normal working hours for that season is exceeded, overtime is payable.
An employee is contracted for 45 hours per week and no reference to daily working hours. The employee works 3 hours overtime on Monday; works for 4 hours on Tuesday because of rain; sick on Wednesday; 9 hours on Thursday and Friday. The contract says normal hours are 45 hours per week and that overtime will be paid after 45 hours per week are worked. When is overtime payable? After the contracted 45 hours per week? Or the hours worked per day?
The payment of overtime will be for any time that exceeds the “ordinary hours of work”. Even if the employee is contracted on a 45-hour week and it is stipulated that 45 hours is only payable thereafter, employer will still need to pay overtime that exceeds the daily ordinary hours. Hours cannot be used to fill up the total hours of 45-hours. If the employee normally works 9 hours per day, then overtime will be calculated from hour 10. It is always advisable that employment contracts make provision for certainty in terms of daily hours.
If the contracts make provision for a compressed workweek, overtime in this instance will not be payable. The sick leave payment is dependent on the SD13, Section 22 (Sick Leave).
It is important to note that the working terms and conditions are both specific for that workplace but also cater for any variables that are specific to that workplace. Each terms and conditions of employment must be evaluated on the unique circumstances of the business.
Must seasonal workers be paid when they are contracted for 3 months and one of the days fall on a public holiday?
Yes, seasonal employees are entitled to be paid for public holidays if it falls on a day on which the employee would have worked.
What does the law state regarding roll-over contracts? When must an employee become permanent? I.e., the employee has returned to the same place of work for 5 years but is still contracted on a fixed-term contract.
Where it is evident that an employee is needed throughout the year for a few years, the employee should be made permanent. If the employer cannot guarantee that there will be enough work, the employee can be placed on a Part-Time Permanent contract where the employee will only be paid if he works.
If pickers are picked up in the morning and arrive at the workplace at 07:00, but only start to work at 10:00, will these pickers need to be paid for the three hours before 10:00?
In this instance, if the employee is not being paid for the three hours, there should be an agreement that the employer can provide transportation but that it will be available only once in the morning. It should furthermore explain that transportation will be available at 07:00 but work is only available from 10:00 onwards, and should the employee make use of the work’s transportation he must know that he will not be paid for the 3 hours, but only when he actually starts working. It is the employee’s choice if he wants to make use of the transportation. Alternatively, he/she can get his/her own transportation and arrive at work before 10:00. If no such agreement or equivalent is in place, the employee will be deemed to have started work at 07:00 and should therefore be paid accordingly.
In cases of work stoppages, must an employee be paid for a minimum of four hours if they arrive at work, but perhaps due to rainy weather, work is stopped within one hour of arrival?
Yes. For things like rain days (or events where work is stopped due to circumstances outside of the employers’ control), if the employee worked for four hours or fewer, the employee must be paid for at least four hours’ work. The employer must have an adequate work-stoppage procedure in place that identify the process of informing employees whether work will continue to or not, before arriving at work.