Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS REGULATION - PART 7 - VARIANCES AND EXCLUSIONS

ESR Section 37.9 – Silviculture workers


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This regulation explains which sections of the Act do not apply to silviculture workers. It also details shift requirements and the appropriate method for calculating wages. 


Text of Legislation

37.9. (1) Sections 33, 35, 36(1), 37, 40 and 42(2) of the Act do not apply to a silviculture worker.

(2) An employer of a silviculture worker must

(a) implement a shift schedule that consists of

(i) no more than 5 consecutive days of work followed by a day off, and

(ii) within each month at least 2 consecutive days off or at least 8 non-consecutive days off.

or

(b) an employer may implement an alternative shift schedule that consists of up to 9 consecutive days of work followed by at least 2 consecutive days off, or no more than 10 consecutive days of work followed by a minimum of 4 consecutive days off as long as:

(i) the work is being done at a remote camp to which there is no ready access,

(ii) written approval has been received from the majority of the affected employees, and

(iii) employees receive at least 8 days off in a month.

(3) A silviculture worker paid on a piece rate basis must receive at least

(a) the equivalent of minimum wage for the first eight hours worked,

(b) the equivalent of minimum wage times 1.5 or the applicable piece rate, whichever is greater, for any time worked over 8 hours, and

(c) double the piece rate for all the time worked over 12 hours in a day.

(4) A silviculture worker paid a regular wage must receive at least

(a) 1.5 times the employee’s regular wage for the time over 8 hours, and

(b) double the employee’s regular wage for any time over 12 hours.

(5) a silviculture worker working a shift schedule set out in subsection (2) of this section must receive at least

(a) if subsection (2)(a) of this section applies, 1 ½ times the piece rate or regular wage for any time worked beyond the schedule set out in (2)(a)

(b) if subsection (2)(b) of this section applies, 1 ½ times the piece rate or regular wage for any time worked beyond the schedule set out in 2(b).

(6) A silviculture worker’s time bank as set out in section 42(1) of the Act, must be credited at the rates required under subsection (3), (4) or (5) of this section.

(7) If the employee agrees in writing, the employer may charge a silviculture worker a fee for lodging provided by the employer, but may not charge more than

(a) $25 per day for camp costs, or

(b) if the worker is lodged in a motel, the actual cost for that individual to stay at the motel.

(8) Part 5 of the Act, except section 48, does not apply to a silviculture worker on condition that the employer pays that silviculture worker, in place of statutory holiday pay,

(a) 4% of gross earnings for the pay period on each pay cheque, or

(b) if the silviculture worker is being paid on a piece rate basis, a sum calculated by multiplying the applicable piece rate by 1.04.

(9) Section 58 of the Act does not apply to a silviculture worker on condition that the employer pays that silviculture worker in place of vacation pay

(a) an amount for each day that is

(i) equal to 4% of gross earnings for the pay period on each pay cheque, or
(ii) if the silviculture worker is being paid on a piece rate basis, calculated by multiplying the applicable piece rate by 1.04

and

(b) after 5 consecutive years of employment, an amount for each day that is

(i) equal to 6% of gross earnings for the pay period on each pay cheque, or
(ii) if the silviculture worker is being paid on a piece rate bases, calculated by multiplying the applicable piece rate by 1.06.


Policy Interpretation

This section only applies to “silviculture workers” who meet the employment conditions as defined in s.1of the Regulation. This means that only silviculture workers that are paid “primarily on a piece rate basis” are included under this section.

Piece Rate Basis” means the rate of pay is based on a measurable quantity of work completed. An employer can pay workers by the tree, the block or the hectare, etc.

Primarily” means that at least 75 percent of wages for silviculture work are paid on an incentive basis. Piece rate workers may, from time-to-time, be paid a set wage for specific tasks.

Subsection (1)

A silviculture worker, as described in the definition under section 1 of this Regulation, is excluded from various provisions of Part 4 of the Employment Standards Act. Specifically, the sections of the Act that do not apply are:

  • Section 33. Split shifts
  • Section 35. Maximum hours of work before overtime applies
  • Section 36(1) Hours free from work
  • Section 37 Averaging Agreements
  • Section 40. Overtime wages for employees not working under an averaging agreement
  • Section 42(2) Banking of overtime hours

Subsection (2)

A silviculture worker must be scheduled by an employer in accordance with subparagraph (a) or (b).

Subparagraph (a)

A silviculture worker must be scheduled by the employer to have a shift schedule of:

  • no more than 5 consecutive days of work, followed by a day off; and
  • in any month, at least 2 consecutive days off or at least 8 non-consecutive days off within each month

OR

Subparagraph (b)

An alternative shift may be scheduled by the employer consisting of:

  • up to 9 consecutive days of work followed by at least 2 consecutive days off; or
  • no more than 10 consecutive days of work followed by a minimum of 4 consecutive days off where:
    • the work location is a remote camp to which there is no ready access
    • written approval has been received from the majority of the affected employees; and
    • employees receive at least 8 days off in a month

Subsection (3)

A silviculture worker paid on a piece rate basis must receive at least:

  • the equivalent of minimum wage for the first eight hours worked; and
  • the greater of:
    • the equivalent of l.5 times the minimum wage for any time worked over 8 hours in a day; or
    • the applicable piece rate; and
  • double the piece rate or regular wage for all time worked over 12 hours in a day

Subsection (4)

A silviculture worker who is paid a regular wage must receive at least:

  • 1-1/2 times the regular wage for the time worked over 8 hours in a day; and
  • double the regular wage for any time over 12 hours in a day

Subsection (5)

Overtime rates for a silviculture worker working under a schedule that is set in accordance with subsection (2)(a) or 2(b) above, is entitled to receive:

  • 1-1/2 times the piece rate or regular wage for any time worked beyond the hours set under that schedule.

Subsection (6)

In accordance with s.42(1) of the Act, Banking of overtime wages, the earnings credited to an overtime bank must be credited at the same rate they were earned at under subsection (3), (4) or (5) of this section.

Subsection (7)

If an employee agrees, in writing, an employer may charge a silviculture worker a lodging fee of:

  • not more than $25 per day for camp costs, or
  • the actual cost, where the worker is lodged in a motel

An employer may charge GST on camp costs, but this must be clearly indicated on the employee’s written authorization. If it is not clearly indicated, GST will be deemed to be included in the $25/day camp costs.

If the employer charges GST on camp costs, this amount must be clearly set out on the employee’s paystub as a separate amount.

Example:

Camp costs 5 days x $25: $125
GST on camp costs:           $6.25

Subsection (8)

A silviculture worker is excluded from Part 5 of the Act, Statutory Holidays (except section 48), with the condition that the employer pays the worker as follows:

  • 4% of gross earnings for the pay period on each pay cheque; or
  • where the worker is paid on a piece rate basis – an amount calculated by multiplying the applicable piece rate by 4%.

In addition to the 4% statutory holiday pay on each pay cheque, a silviculture worker is entitled to actually take the statutory holiday off (without additional pay), or substitute another day for a statutory holiday in accordance with the terms of s.48, as follows:

  • an employer may substitute another day off for a statutory holiday, with the agreement of the employee, or the majority of the employees, as the case may be;
  • an agreement between an employer and one employee is permissible;
  • in the case of more than one employee, the majority of the affected employees must agree to the substitution;
  • employee’s wishes must be determined by democratic means and a written record must be kept of the decision-making process for 2 years.

Subsection (9)

Subsection (9)(a)

A silviculture worker is excluded from s.58 of the Act, vacation pay, with the condition that the employer pays the worker an amount for each day that is:

  • equal to 4% of gross earnings for the pay period on each pay cheque; or
  • when paid on a piece rate basis, an amount equal to the applicable piece rate multiplied by 1.04.

    AND

    Subsection (9)(b)
  • After completion of 5 consecutive years of service, an amount for each day that is: equal to 6% of gross earnings for the pay period on each pay cheque; or
  • when paid on a piece rate basis, an amount equal to the applicable piece rate multiplied by 1.06.

Note: The work day is paid ’portal-to-portal’ — from the time workers leave camp or pick-up point to the time they are returned to camp or designated pick-up point.

If an employee's piece rates are less than minimum wage in a pay period, the employee must be paid minimum wage for that pay period.

Earnings from one pay period cannot be used to offset another pay period where the piece rate earnings came to less than minimum wage.

A contractor cannot levy penalty or quality assessments against a silviculture worker. The employee's pay cannot be reduced because a third party has assessed a quality penalty on the contractor.

Any promised bonus based on work performed or offered as an incentive (e.g. an ‘end of season’ bonus) would be considered wages and must be paid as promised. It cannot be reduced or adjusted for any reason.

An employer cannot charge employees for damage to tools, supplies, vehicle expenses or any other cost associated with running the business.

An employer is not required to pay for work not performed. A silviculture workers’ pay may be reduced or adjusted as a result of ‘over-tally.’ For example, if a tree-planter’s tally is greater than the number of trees actually planted her/his pay can be reduced accordingly. Where over-tally or over-counts occur, an employer may not correct it on a group basis. If the employer can show an individual employee over-tallied or over-counted, the employer need only pay the amount of work actually performed.


Related Information

Related sections of the Act or Regulation

ESA

ESR

Factsheet

Silviculture Workers