Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS REGULATION - PART 7 - VARIANCES AND EXCLUSIONS

ESR Section 37.12 – Aquaculture – fin fish workers


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section excludes fin fish farm workers from certain sections of the Act, and sets out specific provisions that apply instead. This section sets out the rest periods and other hours of work and overtime provisions that apply to fin fish farm employees who work on a 24-hour, live-in basis.


Text of Legislation

37.12. (1) Sections 35, 36 (1) and 40 of the Act do not apply to an employee at a fin fish farm site who has worked or earned an average of at least 35 hours per week in a one to 8 week period which is specified by the employer before the work begins.

(2) If an employer requires an employee to work at a fin fish farm site on a 24-hour live-in basis, the employer must include in each 24-hour period

(a) a rest period of 8 or more consecutive hours, and

(b) a total of at least 12 hours of rest

(3) Section 1(2) of the Act does not apply to a rest period or rest referred to in subsection (2).

(4) For each interruption of a rest period or rest referred to in subsection (2), the employer must pay the employee for the greater of

(a) 2 hours, or

(b) the hours actually worked during the interruption.

(5) The rate of pay for the hours referred to in subsection (4) is as follows:

(a) 1 ½ times the employee’s regular wage if the total hours worked or earned that day is 12 hours or fewer;

(b) double the employee’s regular wage if the total hours worked or earned that day is more than 12 hours.

(6) Sections 33, 35, 36 (1) and 40 of the Act do not apply to an employee who is required to work at a fin fish farm site on a 24-hour live-in basis.

(7) An employer who requires an employee to work on a fin fish farm site on a 24-hour live-in basis must pay the employee, at 1 ½ time the regular rate, for all hours worked in excess of an average of 40 hours per week in a one to 8 week period which is specified by the employer before the work begins.


Policy Interpretation

Subsection (1)

This sub-section of the Regulation applies to those fin fish farm site workers who do not work on a 24 hour, live-in basis.

This sub-section applies to workers who have worked or earned an average of at least 35 hours per week (including time in the hatcheries), in a “one to eight week period”, if the employer has specified the period before the work begins.

Workers who meet the criteria are excluded from various hours of work and overtime provisions of Part 4 of the Employment Standards Act, including:

  • Section 35 Maximum hours of work before overtime applies
  • Section 36(1) Hours free from work
  • Section 40 Overtime wages for employees not working under an averaging agreement

Employees who work or earn on average less than 35 hours per week are not included in this Regulation. They are covered by sections 35, 36(1) and 40 of the Act.

Fin fish farm site employees who work on a 24-hour live-in basis

Subsection (2)


If an employer requires an employee to work at a fin fish farm site on a 24-hour live-in basis; for each 24 hour period, the employer must provide:

  • a rest period of 8 or more consecutive hours; and
  • a total of at least 12 hours of rest.

Subsection (3)

The definition of “on call” in section 1(2) of the Act does not apply to employees who work at a fin fish farm site on a 24-hour live-in basis. Fin fish farm site employees are not considered to be “at work” while on call at a location designated by the employer; therefore they are not entitled to be paid wages when on a rest period or resting under subsection (2) above.

Subsection (4) and (5)

Each time an employer interrupts an employee’s rest period or rest under subsection (2) above, the employer must pay the greater of:

  • 2 hours; or
  • the hours actually worked during the interruption

at the following rate of pay: 

  • one and-one-half times the regular wage if total hours worked or earned that day are 12 hours or less;
  • double the regular wage if the total hours worked or earned that day are more than 12 hours.

Subsection (6) and (7)

Employees who are required to work at a fin fish farm site on a 24-hour live-in basis are excluded from the following provisions of the Employment Standards Act:

  • Section 33 Split shifts
  • Section 35 Maximum hours of work before overtime applies
  • Section 36(1) Hours free from work
  • Section 40 Overtime wages for employees not working under an averaging agreement

The overtime rates for employees required to work at a fin fish farm site on a 24-hour live-in basis are as follows:

  • One and one-half times the regular rate for all hours worked in excess of an average of 40 hours per week in a “one to eight week period.” The period must be specified by the employer before the work begins.

Under s.1 of the Regulation, a person employed in aquaculture is excluded from the following definitions for purposes of the Act:

  • farm worker
  • fisher

Related Information

Related sections of the Act or Regulation

ESA

ESR

Factsheet

Fish Farm Workers