Denese Espeut Post
Are you a Farm Labour Contractor (FLC)? Do you provide labour to vineyards or orchards in connection with planting, cultivating or harvesting? Do you employ workers who work on different farms owned by different orchardists? If you do, you may be considered a FLC. As an FLC, you must be licensed under the Employment Standards Act (“ESA”). If you are an agricultural product producer such as a vineyardist or orchardist and you employ an FLC to assist you with your operations, your FLC must be licensed or else you, as a producer, may be penalized under the ESA.
There are some exceptions to the licensing requirements for an FLC. For example, if you operate solely in silviculture or in spraying or pruning trees, you are exempted from the licensing requirements for FLCs. Producers who only hire people to pick crops on their own land are also not required to be licensed as FLCs.
As a growing business owner navigating the many obstacles of operating a business, you may not have been aware of the licensing requirements for FLCs, but if you do operate as an unlicensed FLC, you may be subject to monetary penalties under the ESA.
The requirement to be a licensed FLC comes with specific duties. As an FLC, you must 1) carry your license at all times while carrying on licensed activities; 2) display a copy of the license in all vehicles used for transporting employees; 3) show your license to all people with whom you deal as an FLC; 4) immediately advise the Employment Standards Branch (“ESB”) of a change to your business or residential address; 5) provide the ESB with a list of all registration numbers and license numbers for all vehicles used to transport employees; 6) affix an inspection certificate to all vehicles used to transport employees; 7) ensure that every person who transports employees has a valid driver’s license and; 8) post a notice provided by ESB outlining the safety requirements for vehicles in all vehicles used to transport employees.
In addition to these duties, an FLC must maintain daily records at each worksite which must be made available to the ESB for inspection. These daily records must contain 1) the name of the agricultural producer and the work site location as well as the names of the workers at that site that day; 2) the names of your workers and the dates worked by each worker; 3) the site were each worker works on each day; 4) the fruits, vegetable, berry or flower crop picked on each day by each worker; and 5) the volume or weight picked by each worker each day. These records must be kept for two years after a worker’s employment terminates.
Further, as an FLC, you must prominently display, at all work sites and in all vehicles used for transporting employees, the wages being paid to your workers. All wages must be deposited directly into your worker’s bank account.
Compliance with these requirements is important as the ESB has the ability to appoint an agriculture compliance team to enter farms where work is being completed to make unannounced visits in order to observe your business operations. Members of this team can speak to either the FLC or the agricultural producer as well as the FLC’s employees to determine if the ESA requirements for FLCs are being met. Daily FLC records can also be reviewed during these unannounced visits. If you, as an FLC, fail to comply with the requirements, you may be subject to penalties ranging from $500-$10,000.
Also, there is a minimum wage set out in the ESA imposed upon an FLC who transports a worker to a worksite, but then does not provide work for that worker; however, this minimum requirement does not apply if work cannot be provided due to unsuitable weather conditions or other factors beyond the FLC’s control.
In order to obtain a license, you must pass a written test and post security for each employee in the form of a bond equal to 80 hours of minimum wage; however the amount of the bond will be reduced if the FLC has complied with certain requirements in the ESA. An issued licence will be valid for three years provided you have no previous breaches of the ESA. If you are an agricultural producer who uses unlicensed FLCs, you may also be subject to penalties ranging from $500-$10,000.
For more information, see the ESB Factsheet, Farm Labour Contractors, which was relied upon for this column or speak with your lawyer. Denese Espeut-Post is an Okanagan-based lawyer and owns Avery Law Office. Her primary areas of practice include wine and business law. www.averylawoffice.ca