Denese Espeut Post
Farm workers are essential to the food supply chain and provide invaluable assistance to agricultural operations, but when it comes to employment legislation, farm workers are treated differently from non-farm workers.
Our B.C. employment law sets out minimum standards for employees for hours of work, overtime wages and the statutory holiday entitlements. However, other than the standard against excessive hours, B.C. law exempts farm workers from these minimum standards. What does this mean in practice? Farm workers do not receive overtime or statutory holiday pay, but an employer cannot require or allow a farm worker to work excessive hours which may harm the farm worker’s health and safety.
Sometimes disputes may arise between employers and workers regarding whether the worker is a “farm worker”; the employee will demand payment for overtime hours and holiday pay while the employer will take the contrary position. If the dispute cannot be resolved, the worker may make a complaint to the BC Employment Standards Branch which is a provincial government office that helps workers and employers resolve problems. Once the complaint is filed, it may proceed to an investigation, mediation or complaint hearing. The Director of Employment Standards (the “Director”) will issue a written decision which can be appealed to the Employment Standards Tribunal (the “Tribunal”).
The Tribunal released a recent decision which considers whether an employee is a “farm worker” which is defined in our law as:
a person employed in a farming, ranching, orchard or agricultural operation and whose principal employment responsibilities consist of growing, raising, keeping, cultivating, propagating, harvesting or slaughtering the product of a farming, ranching, orchard or agricultural operation, clearing, draining, irrigating or cultivating land, operating or using farm machinery, equipment or materials for the purposes of paragraph (a) or (b).
In the Tribunal’s September 10, 2020 decision in Lazy F-D Ranches and Hay Sales Ltd. (Re), the Tribunal reviewed the Director’s determination that the employer failed to pay the worker overtime, statutory holiday pay, annual vacation pay and length of service compensation. The Director ordered the employer to pay over $50,000 plus interest to the worker. The sole issue before the Tribunal was whether the worker was a “farm worker."
The worker was employed as an Agricultural Equipment Technician on the employer’s farm under a Labour Market Impact Assessment (“LMIA”) permit. The Tribunal confirmed the Director’s finding that although the employer was an agricultural operation, the worker was not a farm worker. As a Technician, the worker’s main tasks were to inspect, test, maintain and repair agricultural equipment which are not tasks included in the legal definition of “farm worker." The employer argued that the worker did perform farm work tasks related to the harvest and cultivation of land, but the Tribunal confirmed the Director’s finding that, when looking at the worker’s employment as a whole, the worker’s principal employment activities did not consist of “farm worker” tasks.
The Tribunal further noted that because the worker worked under a LMIA, which permits an employer to hire a foreign worker as there is no Canadian worker or permanent resident available to do the job, “the federal government was satisfied no Canadian was available to perform the work of an agricultural technician.”
So, while there was evidence before the tribunal that the worker completed no or very little mechanic duties for large amounts of time (especially in the winter), the legal definition of a “farm worker” does not set out the amount of time that a worker must spend on “farm worker” tasks; “rather the key is what the Employee’s most important employment responsibilities were.” In this case, as the worker was hired because he had skills of a mechanic that no Canadian was available to perform (given the LMIA), the worker’s principal employment responsibilities were not farm worker tasks despite the amount of time the worker spent performing them.
When determining if a worker is a “farm worker," a key take-away from this Tribunal case is that the principal employment duties of the worker is a key consideration, not the amount of time the worker spends doing those duties (even though the time spent doing those duties may be insignificant). The Tribunal will generally interpret our employment laws in a way which encourages employers to comply with the minimum employee requirements to protect as many employees as possible.
Take a look at your employment agreement with your employer or your worker(s) and compare the worker’s principal duties with the duties of a “farm worker” set out in the legislation. Do you think the worker is a “farm worker”? See your lawyer to discuss your employment agreement(s) and the minimum employment standards that apply.
Denese Espeut-Post is an Okanagan-based lawyer and owns Avery Law Office. Her primary areas of practice include wine and business law.