Silviculture Guidelines for Contractors
The following definitions set out the application of the Act with respect to this industry.
The following definitions set out the application of the Act with respect to this industry.
- Ready Access and Remote Worksite
- Alternative Work Schedule
- Management/ Supervision
- Co-op Productivity
- Meal Breaks
- Termination/Layoff and Compensation for Length of Service
- Minimum Wage
- Hours of Work
- Statutory Holidays
- Vacation Pay
"Ready access" exists when employees can be transported to the camp or the worksite by conventional methods, (van, truck, or other passenger vehicle). Where access to the camp or the worksite requires specialized transportation (airplane, helicopter, barge, or a boat), ready access does not exist. Typically, when a worksite cannot be accessed by the normal road/highway network, it will be deemed to be "remote". This includes sites where a forest road is temporarily activated to allow access.
A "remote worksite" is one where the employer is unable to establish a camp for their employees. This would apply where it is logistically impossible or where it is economically prohibitive. The employer must be able to show that the decision not to establish a camp was made for valid financial reasons, and was not simply to avoid inconvenience.
Where employees are required to work at a remote site (one without ready access) the employer and the employees may agree to adopt an alternative shift schedule. A majority of employees must agree in writing.
The Director of Employment Standards expects that each contractor (employer) will provide adequate supervision of their crews in order to ensure that contract obligations are met. Supervisors may be paid at an hourly rate, monthly salary, or a combination of piecework and incentive payments based upon productivity. If a supervisor is a "manager" as defined under the Regulations, he or she is exempt from entitlement to the hours of work and overtime provisions of the Act, set out in Part 4.
For an employee to be considered a "manager" under the Act his or her primary employment responsibilities must be supervising or directing employees or other resources, or performing in an executive capacity. Typically, activities or duties of a manager include hiring or terminating employees (or participating in the hiring or firing decision), disciplining or evaluating employees, scheduling work, budgeting, and directing. This is not an exhaustive list. It is intended to identify the duties that represent the primary functions of a manager. A working supervisor who spends the majority of her or his time performing the same work as the employees they supervise would not be considered to be a manager.
"Executive capacity" means exercising substantial authority over the business and performing duties that involve controlling, supervising, and administering business affairs. In general, this would represent the principals or owners of the company.
The employer and the employees may agree to "co-op". "Co-op" means that the individual incentive is replaced by a collective incentive. For a co-op to be established the employees involved must agree in writing to allow everyone to share in the earnings, based on their combined efforts. They would therefore all receive the same pay for their work on the co-op block. An agreement of this nature must be made before work on the block starts, and must be in writing. The employer must keep a copy of the agreement.
The Director of Employment Standards will accept such agreements, provided that the rates are known prior to the commencement of work.
Note: Contractors should be aware that in order for the plan to be deemed piece rate or incentive the "co-op" rates established must exceed "Minimum Daily Standards" for each member of the co-op.
An employer must ensure that no employee works more than five consecutive hours without a meal break. Each meal break must last at least half an hour. Where an employer requires an employee to work or be available for work during a meal break, the employer must count the meal break as time worked by the employee.
When a block does not meet the optimal standard, and a third party penalizes the employer (contractor) for it in the form of a reduced payment, the reduction cannot be passed on to the employees who performed the work. Employees must be paid the agreed upon piece rate regardless of the outcome of a subsequent quality inspection by an employer representative, the Ministry of Forests or any other third party. A penalty imposed on the employer for substandard work is a cost of doing business. An assessment at a reduced rate or a direction to replant are deemed to be costs of doing business. Passing on any cost of doing business to employees (such as a fine or penalty) is a contravention of Section 21(2) of the Act. This would apply whether or not the employees agreed. Section 4 of the Act does not permit any agreement that waives statutory requirements.
The requirements for compensation for length of service or working written notice of termination of employment or group termination (Sections 63 and 64 of the Act) would generally not apply to employees employed on a seasonal basis in the silviculture industry.
The planting, thinning or spacing of trees and associated activities are considered to be specific work not to exceed a 12 month period. Employees would generally not expect to be employed on a year round basis. They are not employed on an indefinite term contract. They are aware from the outset that they are only employed for the duration of the season or on a project to project basis. Their employment is of short duration. Since they know from the commencement of their employment that it is time limited, they have the opportunity to make the necessary financial and other arrangements for which the termination provisions of the Act are intended.
However, there is an exception. If an employee is hired for the season and works in excess of three months, but is terminated while the employer still has work available, the employee is entitled to compensation for length of service. An employer can discharge the obligation for compensation for length of service by providing the employee the required working written notice. Notwithstanding, an employer is not required to pay compensation for length of service if the employee is terminated for just cause.
There must be at least two pay periods per month, and a pay period cannot exceed 16 days. Employers must pay all wages earned by employees in each pay period no later than eight days after the end of the pay period. Where the employer terminates an employee, the employer must pay all wages owing within 48 hours. If an employee quits, the employer must pay all outstanding wages within six days of the last day of employment.
Employers cannot deduct any money, other than as required by law (taxes, CPP, EI) from an employee’s paycheque, without the employee’s written agreement. Deductions for stashing of trees, block assessment, or damage to equipment are not permissible. Camp fees may be deducted provided the employee has been advised in advance and has given written agreement. An employer may charge GST on camp costs if this is noted in the written agreement, and the paystub shows the amount deducted for GST on camp costs as a separate item.
The work day begins and ends at the camp or motel. For purposes of calculating minimum wage, all hours worked between leaving the camp or motel and returning are counted as hours worked. The earnings must account for the hours spent working, including those spent traveling.
Normal Shift Cycles
Employers set the shift schedules. A schedule must provide that no employee be scheduled to work more than five consecutive days without a day free from work. Further, the employer must ensure that they schedule at least one period of two consecutive days off, or at least eight non-consecutive days off a month. The employer must pay time-and-a-half if employees work on days that are supposed to be scheduled days off.
Remote Shift Schedules
An employer must schedule shifts as prescribed above. The employer must pay an employee one-and-one-half times the agreed piece rate or regular wage for all time worked on any scheduled day off.
In a remote worksite, with the prior written approval of a majority of the affected employees, the employer may set alternate shift schedules. The alternate shift schedule may consist of:
- up to nine consecutive days of work followed by a minimum of two consecutive days off, or
- no more than ten consecutive days of work followed by a minimum of four consecutive days off.
Any alternative schedule must have at least eight days off a month.
All employees paid a regular wage must earn at least minimum wage at straight time for all hours worked, up to and including the first eight hours in a day. Employees must earn at least one-and-a-half times their regular wage for the next four hours and double time for hours worked over 12 in a day.
Employees paid by a piece rate must be paid at least the equivalent of minimum wage for the first eight hours worked. Employees must earn one-and-a-half times minimum wage or one-and-a-half times the applicable piece rate, whichever is greater, for the next four hours and at least double the piece rate for hours worked over 12 in a day, averaged over the pay period.
The employer must pay an employee one-and-one-half times the agreed piece rate or regular wage for all time worked on any scheduled day off.
Statutory holidays are New Year’s Day, Family Day, Good Friday, Victoria Day, Canada Day, British Columbia Day, Labour Day, Thanksgiving Day, Remembrance Day, and Christmas Day.
Part 5 of the Act, (statutory holidays, and statutory holiday pay), except for Section 48, does not apply to silviculture workers when their employer pays them an additional 4% of gross earnings on each pay cheque. Where the silviculture worker is being paid on a piece rate basis, this payment is calculated by multiplying the gross earnings for that pay period by 1.04. Statutory holiday pay forms part of the employee’s gross earnings for the purposes of calculating vacation pay.
Section 58 of the Act does not apply to a silviculture worker if the employer pays an additional 4% of gross earnings on each pay cheque. Where the silviculture worker is being paid on a piece rate basis this figure is calculated by multiplying the gross earnings for that pay period by 1.04.
Note: After five consecutive years of employment a silviculture worker is entitled to 6% of gross earnings to be paid on each pay cheque. If the silviculture worker is being paid on a piece rate basis this is calculated by multiplying the gross earnings for the pay period (including statutory holiday pay) by 1.06.