Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS REGULATION - PART 1 - INTERPRETATION
ESR Section 1 – Definitions – Farm Workers
This section contains definitions for terms used throughout the Employment Standards Regulation.
"farm worker" means a person employed in a farming, ranching, orchard or agricultural operation and whose principal employment responsibilities consist of
(a) growing, raising, keeping, cultivating, propagating, harvesting or slaughtering the product of a farming, ranching, orchard or agricultural operation,
(b) clearing, draining, irrigating, or cultivating land,
(c) operating or using farm machinery, equipment, or materials for the purposes of paragraph (a) or (b), or
(d) direct selling of a product referred to in paragraph (a) if the sales are done at the operation and are only done during the normal harvest cycle for that product,
but does not include any of the following:
(e) a person employed to process the products of a farming ranching, orchard or agricultural operation other than to do the initial washing, cleaning, sorting, grading, or packing of
(i) an unprocessed product of the operation during the normal harvest cycle for that product, or
(ii) during the same harvest cycle referred to in subparagraph (i), the same or similar unprocessed product purchased by the operation from another farming, ranching, orchard or agricultural operation;
(f) a landscape gardener or a person employed in a retail nursery;
(g) a person employed in aquaculture.
“Farm worker” includes a person employed in various farming, ranching, orchard or agricultural operations including, but not limited to:
- Dairy operations;
- Mushroom operations;
- Field crop operations;
- Vineyard operations;
- Greenhouse operations (production/growing);
- Ranching including: raising or keeping game under the Game Farm Act, by a person licensed to do so under that Act; raising or keeping fur-bearing animals under the Fur Farm Act, by a person licensed to do so under that Act;
- Poultry operations;
- Livestock operations;
- Orchard operations;
- Turf farms;
- Growing outdoor ornamental flowers and plants;
- Christmas tree growing operations.
Farming, ranching, orchard or agricultural operations do not include:
- Forest practices as defined in the Forest and Range Practices Act (except grazing or hay cutting);
- Agri-tourism (service part of an operation) such as trail rides, corn mazes, bed and breakfasts, restaurants or wine stores;
- breeding pets or operating a kennel or aviary;
- processing of farm products;
- auction halls.
Persons employed in an auction hall are not considered to be farm workers within the meaning of the Regulation. Activity taking place in an auction hall is not considered to be farming or ranching. It is a medium to buy and sell animals or other products of the operation.
“Farm worker” means an employee whose principal employment duties consist of the following types of work:
- growing, raising, keeping, cultivating, propagating, harvesting or slaughtering the product of a farming, ranching, orchard or agricultural operation;
- An employee who cuts and wraps a slaughtered product would not be a farm worker since processing is not included in the definition.
- Clearing, draining, irrigating or cultivating land for a farming, ranching, orchard or agricultural operation;
- Operating or using machinery, equipment or materials for the purposes of (a) and (b) above.
- An employee who operates machinery that cuts and lifts grass at a turf farm is a “farm worker”.
- An employee who drives a truck that transports a product from an operation to market is not a “farm worker”.
- Selling the product of a farming, ranching, orchard or agricultural operation
- at the operation;
- during the normal harvest cycle for that product.
An employee of a blueberry farm selling blueberries at the farm during harvest time is a “farm worker”.
An employee of a farm selling jams and preserves at the farm made from the produce grown at the farm is not a “farm worker”.
An employee selling strawberries at a nearby farmer’s market would not be a “farm worker” since the work is not being performed at the strawberry farm.
A “farm worker” also includes a person whose primary employment responsibilities consist of the initial washing, cleaning, sorting, grading or packing of an
- unprocessed product of that operation; or
- of the same or a similar unprocessed product purchased from another operation;
- during the normal harvest cycle for that product.
An orchard produces apples and during the normal apple harvest cycle purchases pears from another operation. Employees of the operation employed to wash, clean, sort, grade or pack the apples and pears are “farm workers” since pears are a similar unprocessed product to the apples produced by the operation.
A company in the business of buying and packing various crops for the export market employs a person to pack unprocessed blueberries for shipping. The employee is not a “farm worker” since the employer is not a farming, ranching, orchard or agricultural operation, the employee is not employed by the operation producing the products, and the work is not performed at the operation.
A “farm worker” does not include:
- A person employed to process farm, ranch, orchard or agricultural products to an altered or different state.
A person employed to do things such as drying herbs, juicing, wine making, cheese making, canning or preserving fruit products is not a “farm worker”.
- A landscape gardener or person employed in a retail nursery, even if it is located at the same site as an agricultural operation.
- A person employed in aquaculture. Webster’s Dictionary defines “aquaculture” as “the regulation and cultivation of water plants and animals for human use or consumption”.
The definition of “farm worker” does not include a person whose principal employment responsibilities on the farm include things such as:
- Office duties such as receptionist, clerk and bookkeeper;
- Repairing and maintaining farm equipment;
- Driving a truck to haul farm products to market;
- Processing the operation’s product;
- Washing, cleaning, sorting, grading or packing unprocessed products purchased from other operations that are not similar to those grown by the operation where the work is being done.
Employee of a contractor:
An employee of a contractor, other than a farm labour contractor, does not become a “farm worker” when a job is being done on a farming, ranching, orchard or agricultural operation. To be considered a "farm worker" a person must be employed by the operation and the principal employment duties must consist of one or more of those listed in the regulation.
A contractor is hired to install irrigation equipment. The employee of the contractor does not become a "farm worker" while working on an agricultural operation. A contractor who contracts with agricultural operations in addition to non-agricultural clients, including industrial and residential, is not exempt from the overtime and statutory holiday provisions of the legislation.
An employee of a "farm labour contractor" is a "farm worker" since by definition under the Act the employee can only work in an agricultural operation and is under the direction and control of the agricultural operation when planting, cultivating or harvesting an agricultural product.
Note: The director will determine whether or not an “operation” is included in the definition of “farm worker” and whether an employee of such an operation is performing the work of a “farm worker” through investigation on a case-by-case basis.
Exclusions from the Employment Standards Act:
Under s.34.1 of the Regulation, “farm workers” are excluded from:
- Part 4 of the Act, (except s.39) Hours of Work and Overtime;
- Part 5 of the Act, Statutory Holidays
Vacation pay included in piece work rate for certain farm workers:
Under s. 18(1) of the Regulation, vacation pay is included in the pieces rates listed for the hand harvesting of various berry, fruit or vegetable crops. The daffodil piece rate does not include vacation pay
Related sections of the Act or Regulation
- s.1, Definition, “farm labour contractor”
- s.1, Definition, “producer”
- s.30, Producer and farm labour contractor are liable for unpaid wages
- s.30.1, Liability of a farm labour contractor for transportation costs
- Part 2 – Employment Agencies and Farm Labour Contractors, ss. 5 to 12
- s.18, Minimum Wage – farm workers
- s.34.1, Farm workers
- s.39, Exclusions from farm labour contractor licensing requirements
- s.40.1, Exclusion from payday requirements for certain farm workers
- s.40.2, Exclusion from payment options for farm labour contractors