Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS REGULATION - PART 2 - EMPLOYMENT AGENCIES AND FARM LABOUR CONTRACTORS
ESR Section 5.1 – Calculation of Security
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.
Calculation of security
5.1. (1) In this section, "core requirement" means a requirement under any of the following sections:
(a) section 13 (1) of the Act [Farm labour contractors must be licensed];
(b) section 17 (1) of the Act [Paydays];
(c) section 28 of the Act [Payroll records];
(d) section 58 of the Act [Vacation pay];
(e) sections 15 and 18 (1) [Minimum wage].
(2) Subject to subsection (3), the amount of security required to be posted by a farm labour contractor under section 5 (3) (c) is equal to the amount obtained by multiplying the minimum hourly wage by 80, and multiplying the result by the number of employees specified in the licence.
(3) If a farm labour contractor has not contravened any core requirement for a period stated in Column 1 of the following table, the amount of security required to be posted under section 5 (3) (c) is equal to the amount obtained by multiplying the minimum hourly wage by the number set out in Column 2 opposite the period of non-contravention in Column 1, and multiplying the result by the number of employees specified in the licence.
Period of non-contravention
1 year to less than 2 years
2 years to less than 3 years
3 years or more
(4) For the purpose of subsection (3), the "period of non-contravention" begins
(a) on the date the farm labour contractor begins operating, if the farm labour contractor has not previously been licensed or is newly licensed after the farm labour contractor's licence was cancelled, or
(b) on the date the farm labour contractor resumes operating, if the licence of the farm labour contractor was suspended.
For the purposes of this section there are five “core requirements”. The “core requirements” are:
Employment Standards Act
- Section 13(1). Farm labour contractors must be licensed
- Section 17(1). Paydays
- Section 28. Payroll records
- Section 58. Vacation pay
Employment Standards Regulation
- Section 15. Minimum hourly wage
- Section 18(1). Minimum wage – farm workers
Contravention of a core requirement:
Where there is a contravention of a core requirement, a determination will be issued under s.79 of the Act requiring the farm labour contractor to remedy their practices and cease contravening the core requirements.
Under s.98 of the Act a person in respect of whom the director makes a determination and imposes a requirement under section 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.
When a second determination is issued against an FLC for any core provision:
- FLC license is suspended until FLC can provide proof of compliance
When a third determination is issued against an FLC for any core provision:
- FLC license is cancelled.
Authority to suspend or cancel a licence is provided by s.7 of this Regulation.
Note: A determination issued under s.10 of the Regulation to suspend or cancel a licence is separate from and in addition to a determination issued under s.79 of the Act.
Under this section of the Regulation, before a farm labour contractor will be issued a licence, they must post security in the amount directed under s.5.1 of this Regulation. For purposes of the first year of a farm labour contractor’s licence, the amount of security required to be posted will be equal to the amount obtained by:
- multiplying the minimum hourly wage by 80; and
- multiplying the result by the number of employees specified in the licence
Under this subsection, the amount of security that is required to be posted is reduced, if a farm labour contractor has not contravened any “core requirement” for a period of time established in the table shown in this subsection.
Where there is a history of compliance with the “core requirements”, the amount of security required to be posted will be a lesser amount that under subsection (2) above, as follows:
If there is not contravention for 1 year to less than 2 years:
# employees X minimum wage X 60
If there is not a contravention for 2 year to less than 3 years
# employees X minimum wage X 40
If there is not a contravention for 3 or more years
#employees X minimum wage X 20
Fur purposes of calculating the period of “non-contravention” under subsection (3) above, the period begins:
a. On the date the farm labour contractor begins operating, if:
o the contractor has not previously been licensed, or
o the contractor is newly licenced after a licence was cancelled
b. On the date the farm labour contractor resumes operating, if a licence was suspended.
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, Licensing of farm labour contractors
- s.6, Duties of farm labour contractors
- 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