Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS REGULATION - PART 2 - EMPLOYMENT AGENCIES AND FARM LABOUR CONTRACTORS
ESR Section 6 – Duties of farm labour contractors
This section explains what sections of the Employment Standards Act are considered to be “core requirements” for farm labour contractors, requiring security to be posted and the amount of the security required.
6. (1) A farm labour contractor must do all of the following:
(a) carry the farm labour contractor’s licence at all times while carrying on the licenced activities and display a copy of the licence prominently on all vehicles used for transporting employees;
(b) show the licence beforehand to all persons with whom the farm labour contractor intends to deal as a farm labour contractor;
(c) immediately notify the director of a change in the farm labour contractor’s business or residential address;
(d) display prominently at the site where the work is to be performed, and on all vehicles used by the farm labour contractor for transporting employees, the wages the farm labour contractor is paying to employees;
(e) ensure that each vehicle used by the farm labour contractor for transporting employees has affixed to it an unexpired inspection certificate in accordance with section 25.02 of the Motor Vehicle Act Regulations;
(f) file with the director
(i) an up-to-date list of the registration numbers and licence numbers of each vehicle used by the farm labour contractor for transporting employees, and
(ii) if the vehicle is owned by the farm labour contractor, copies of the inspection certificate and other records that must be maintained under section 25 of the Motor Vehicle Act Regulations.
(2) A farm labour contractor who provides transportation to a job site for a farm worker employed by the farm labour contractor and who does not then provide employment for the worker must pay the worker at least the minimum hourly wage for the longer of
(a) 2 hours, or
(b) the time spent from the departure point to the return to that place or to a place that is no further away and is acceptable to the employee.
(3) Subsection (2) does not apply if employment is not available due to unsuitable weather conditions or any other cause completely beyond the farm labour contractor’s control.
(4) A farm labour contractor must keep at the work site and make available for inspection by the director a daily log that includes
(a) the name of each worker,
(b) the name of the employer and work site location to which workers are supplied and the names of the workers who work on that work site on that day,
(c) the dates worked by each worker,
(d) the fruit, vegetable, berry or flower crop picked in each day by each worker, and
(e) the volume or weight picked in each day by each workers.
(5) The records required by subsection (4) must
(a) be in English, and
(b) be retained by the employer for 2 years after the employment terminates, at the employer’s principal place of business in British Columbia.
A farm labour contract must:
- carry their farm labour contractor’s licence at all times while carrying on the licensed activities of a farm labour contractor
- display a copy of the licence prominently in all vehicles used for transporting employees
- show the licence to all persons that the farm labour contractor intends to deal with
- notify the Director of Employment Standards immediately of a change to their residential or business address
- prominently display the wages the farm labour contractor is paying, at any site where work is to be performed, and on all vehicles used for transporting employees
- ensure an unexpired inspection certificate (in accordance with Section 25.02 of the Motor Vehicle Act Regulations) is attached to each vehicle used for transporting employees
- file with the Director of Employment Standards
- a current list of registration numbers and licence numbers of each vehicle used for transporting employees; and
- copies of the inspection certificate and other records that must be maintained under Section 25 of the Motor Vehicle Act Regulations, if the vehicle is owned by the farm labour contractor.
Under s.34.1 of this Regulation, a farm worker is excluded from the following parts of the Employment Standards Act:
- Part 4 (except s.39); and
- Part 5, Statutory Holidays
Under this subsection minimum daily pay requirements are established that do apply to a farm worker.
When a farm labour contractor transports a farm worker to a job site, and then does not provide employment, the farm worker is entitled to receive the greater of:
- 2 hours pay at the minimum hourly wage; or
- an amount of pay, based on the minimum hourly wage, for;
- the time spent from departure point and return to departure point; or
- from departure point to a place acceptable to the employee, if it is not a further distance than from the departure point.
This minimum daily pay requirement also applies in cases where a farm worker is not provided with enough work to meet these minimum requirements, subject to the exceptions in subsection (3).
The minimum daily pay requirements in subsection (2) do not apply if employment is not available due to unsuitable weather conditions, or for reasons that are completely beyond the control of the farm labour contractor.
A farm labour contractor is required to keep a daily log at the work site that must be available for inspection by the director, upon request. The log must contain the following daily records:
- name of each worker
- name of the employer and the work site location where workers are supplied and the name of each employee that worked on that day
- dates worked by each worker
- the fruit, vegetable, berry and flower crop picked in each day by each worker
- the volume or weight picked in each day by each worker
The records must be in English and kept by the employer for 2 years after the employment ends. The records must be kept in the farm labour contractor’s principal place of business.
Contravention of section 6:
Where there is a contravention of this section, a determination may be issued pursuant to s.79 of the Act requiring the farm labour contractor to remedy their practices and cease contravening the requirements of this section.
Under s.98 of the Act a person in respect of whom the director makes a determination and imposes a requirement under s.79 is subject to a monetary penalty.
Refer also to s.29 of this Regulation that sets out the escalating monetary penalties that apply to a person who contravenes a provision of the Act or Regulation.
Related sections of the Act or Regulation
- s.1, Definition, “farm labour contractor”
- s.1, Definition, “producer”
- s.13, Farm labour contractors must be licensed
- s.30, Producer and farm labour contractor are liable for unpaid wages
- s.79, Determinations and consequences
- s.98, Monetary penalties
- s.125, Offences
- s.1, Definition, “farm worker”
- s.5.1, Calculation of security
- s.7, Cancellation or suspension of farm labour contractor ’s licence
- s.8, If there is a change of directors or officer
- s.9, Rules about licences
- s.10, If a licence is refused, cancelled or suspended
- s.11, Surrender of licence
- s.12, Appeals from the refusal, cancellation and suspension
- s.18, Minimum Wage – farm workers
- s.34.1, Farm workers
- s.39, Exclusions from farm labour contractor licensing requirements
- s.47, Complaints of contravention of this regulations