Recent changes in the legislation have included many workers in Agriculture who previously were not covered by Employment Standards legislation. This fact sheet provides an overview of the issues that employers in the agriculture sector need to be aware of.
A Guide to Employment Standards in Agriculture
Employment Standards in Agriculture at a glance
The chart below lists the most common Employment Standards provisions and to whom they apply in agriculture:
What are climate controlled facilities where all or substantially all the employee's work is performed?
This covers employees who normally work in one or more climate-controlled facilities. Examples would include some mushroom plants, poultry facilities, hog barns or greenhouses.
This is different from an employee who works on a mixed farm where part of the duties may occur in climate controlled facilities but other tasks are outside. This employee is excluded from overtime, general holidays and reporting pay because their work is not all or substantially all in a climate-controlled facility.
The effect of weather and climate on the work is a factor when considering if an employee is covered for general holidays, reporting pay, hours of work and overtime. Employers operating climate controlled facilities are less dependent on the weather when scheduling their employees’ hours of work.
Employees hired to work in climate-controlled facilities are covered by all the provisions of The Employment Standards Code.
What about employees who spend one season in climate controlled facilities, and the rest of the year working both indoors and outside?
If employees are hired to work partly outside on the farm and partly inside a climate controlled facility, they would not be entitled to minimum standards regarding overtime, hours of work, general holidays or wages for reporting to work.
What are agriculture companies that provide services to farms and farmers?
Employees who work for an agricultural company that provides services to farms and farmers are covered by all provisions of The Employment Standards Code. These are businesses that provide services to farms, but do not own the farms where the work is being done. This includes businesses that provide services like custom combining, chicken catching crews, manure removal or other services in the agriculture industry.
How often must employees be paid?
Employees must be paid at least twice a month, within 10 working days of the end of a pay period. If the employment is terminated, employees must be paid within 10 working days from the date of termination.
What records are employers required to maintain?
Employers must keep records for all employees that show:
If an employee is paid a monthly or annual salary, it can be divided into an hourly wage for record keeping purposes. Regular hours of work are not required to be recorded if they do not vary on a daily basis, but any overtime or other changes should be recorded
What are the rules regarding equal pay?Generally employers determine the wage rate for their employees. Employers can not have separate wage schedules for male and female employees if the kind or quality of work and the amount of work required and done by, the employees is the same or substantially the same.
Does the legislation apply to family members working on a farm owned by someone in the family?
No, the legislation excludes family members who work on a farm owned by a member of the family from most parts of The Employment Standards Code. The employer must still keep records, pay what was promised and follow the rules regarding equal wages for men and women, however the rest of the minimum standards do not apply.
What is the minimum wage?
As of October 1st, 2013, minimum wage is $10.45 per hour in most industries.
Do employees need to give notice of termination?
Yes. The amount of notice depends on how long the employee has been employed by the same employer:
Do employers need to give notice of termination?
Yes. The amount of notice depends on how long the employee has worked for the same employer.
Employers can either allow the employee to work out this notice period, or pay wages in lieu of notice, for the same number of weeks, or a combination of both
Can employers pay wages instead of providing notice of termination?
Employers can pay the amount of wages employees would otherwise have received had they worked out the notice period (often called wages in lieu of notice). Employers can also allow employees to work for part of the notice period and pay wages in lieu of notice for the remainder.
Vacation wages and overtime wages are not added to wages paid in lieu of notice.
Employees who work the same hours every week receive their regular earnings for wages in lieu of notice. For employees who work varying hours every week, wages in lieu are based on an average of the regular weekly hours worked over the last 6 month period.
Is there a period when no notice is needed?
Yes, employers and employees do not need to give notice of termination when the employee has been employed for less than 30 days. Employers are not allowed to extend or change this period, unless it is negotiated in a collective agreement with a union.
Are there situations when employers or employees do not need to give notice of termination?
The following are some cases where notice of termination is not required:
Employers must consider each situation on a case by case basis if deciding not to provide a notice period to an employee.
Are employers required to give notice to seasonal employees?It depends. Employers are not required to provide notice of termination at the end of the season, if the employees are told when they are hired that the position is subject to seasonal layoffs and the job will end at the end of the season. However, if an employee is terminated before the end of the season the appropriate notice would apply. Employers are not under any obligation to rehire an employee who was released at the end of the season.
How is the period of employment calculated in regard to termination for seasonal employees?
Employment in a seasonal industry is deemed to be continuous if employees return to work with the same employer each season. Each consecutive season they return adds one more year of service. Seasonal employees who are terminated before the end of the season are entitled to notice of termination based on their number of consecutive seasons with the employer.
At what age can a child start working?
All employees under 16 years old must have a permit from Employment Standards before they can work. Children under 12 years old are only allowed to work for an employer in exceptional circumstances.
How do I apply for a Child Employment Permit?
Download a Child Employment Permit Application or contact Employment Standards. The application requires information from the child, parent/guardian and employer. Return the completed form to Employment Standards, by mail, fax, email or in person.
How long is a vacation?
Employees must receive at least two weeks of vacation after each of the first four years of employment. After completing 5 years of work with the same employer, employees must receive a minimum of 3 weeks of vacation.
What are employees paid while on vacation?
Vacation pay is calculated based on the gross earnings in the previous year. For each week of vacation, employees earn 2% of their gross wages as vacation pay. Employees who are entitled to two weeks of vacation receive 4% of their gross wages as vacation pay, and employees with three weeks’ vacation receive 6% of their gross wages as vacation pay.
Can employers put vacation pay on every cheque?
Employers may put vacation pay on every cheque. Employees are still entitled to take time off as vacation but, because it has already been paid, they do not receive any additional vacation pay while they are off.
How is the period of employment calculated in regard to vacation for seasonal employees?Employees who are laid off at the end of the season and are rehired at the beginning of the next season are considered to have continuous employment for vacation. Therefore, an employee is entitled to 2 weeks vacation and 4% of their wages as vacation pay after the first four seasons, and is entitled to 3 weeks of vacation and 6% of their wages as vacation pay once they have completed 5 seasons with the employer.
How often must employees receive a break?
Employees must be given a 30 minute unpaid break after every five consecutive hours of work. Many employers provide additional coffee breaks, cigarette breaks or other meal breaks. These are a benefit, but are not required.
How often must employers provide a day of rest?
Most employees are entitled to a rest period of no less than 24 consecutive hours each week. In practice, this means employees could work up to 12 days in a row in a two week period if the days of rest occur at the beginning of the first week and the end of the second week.
What leaves are available to employees?
There are ten unpaid leave options for employees
How long must employees work before they qualify for the leave?
For leave related to the death or disappearance of a child, leave related to the critical illness of a child, family leave, bereavement leave, leave for organ donation, compassionate care leave and leave for a citizenship ceremony, employees must work for the same employer for 30 days to qualify for leave.
For Reservist, maternity, and parental leave, employees must work for the same employer for 7 consecutive months to qualify for leave.
Does the employer need to pay during the leave?
No, employers are only required to provide the time off and allow employees to return to their job when the leave has ended. Employers are not required to pay wages during the leave but can, and often do, give greater benefits than those provided for in the legislation.
What can be deducted from employees' wages?
The general rule is that employers can only make deductions from wages when these are:
Examples of what can be deducted from employees’ wages include:
What types of things cannot be deducted from employees’ wages?
Employers cannot charge interest or fees for cashing cheques or providing payroll advances. Employers cannot recover business expenses from the wages of employees.
Unauthorized deductions include:
Issues for employees working substantially or entirely in climate-controlled facilities or in the agricultural services sector.Recent changes to The Employment Standards Code have provided employees working on a farm, primarily in the production of agricultural products, working substantially or entirely in climate controlled facilities with the full protection of The Employment Standards Code. Further, employees who work in the agricultural services such as custom combining, chicken catching or manure removal also have the full protection of The Employment Standards Code. In addition to the protections listed above they have further protections related to; general holidays, reporting pay and hours of work/overtime.
What are the general holidays in Manitoba?
There are eight general holidays throughout the year:
Most employees are paid general holiday pay for these days whether they work or not.
How is general holiday pay calculated?
Employees who consistently work the same number of hours get one regular work day’s pay as general holiday pay.
For employees whose hours of work or wages vary, general holiday pay is calculated at 5% of the gross wages (not including overtime) in the 4 week period immediately before the holiday.
Do all employees receive general holiday pay?
All employees receive general holiday pay unless:
What if employees work on the general holiday?
Employees who work on a general holiday are normally entitled to 1 ½ times their regular rate of pay for the hours worked on the day, in addition to their general holiday pay.
Do all agricultural businesses need to pay 1 ½ times the regular wage for work on a general holiday?
There is an exception for employers operating a continuously operating business, a climate-controlled agricultural business or a seasonal business.
These types of businesses can pay 1 ½ times the regular wage for hours worked on the general holiday, or can instead allow the employee to work the general holiday, and pay them regular wages for their hours worked, if they provide another day off, with general holiday pay within the next 30 days. The employer and employee can agree to a longer period before the employee's next annual vacation if they wish.
How much are employees paid for reporting to work?
When an employer decides to cancel shifts, or to send employees home early, those that are scheduled to work more than 3 hours, and
If employees are scheduled to work less than 3 hours they must be paid for their entire scheduled shift.
What are the standard hours of work?
Standard hours of work are 40 hours a week and 8 hours a day. Employees are entitled to their regular wage rate for work during these hours. If employees work more than the standard hours in a week or in a day, this is overtime and must be paid at the overtime rate.
What is the overtime wage rate?
Employees are paid 1 ½ times their regular hourly wage for each hour (or part of an hour) worked during overtime.
How are overtime hours determined?
Overtime is determined by the number of hours employees work in a day and in a week. Any hours worked over 8 hours in a day or 40 hours in a week are overtime.
Below are some examples of how to calculate overtime. Days where overtime hours are worked are shown in bold:
Who decides when overtime will be worked?
Employees cannot work overtime without the knowledge or permission of their employers. Employees must be paid at 1½ times their regular wage rate if employers ask, allow or acknowledge the overtime.
Can employees bank overtime and take time off later?
Yes, employers and employees can agree, in writing, to bank overtime. The agreement must follow these rules:
Employer FlexibilityThe Employment Standards Code establishes the minimum standards for employees and employers in the workplace. The legislation does consider that a degree of flexibility is required in the workplace and that employers need to be able to administer the wages and benefits they provide in a way that makes sense for them.
Generally employers and employees can agree to terms and conditions of employment, provided they do not go below the protections in The Employment Standards Code.
The following sections provide information on employer rights and flexibility in the workplace that allow employers to manage their operations.
Who controls scheduling of the hours of work?
Within the standard hours of work, employers control scheduling. They make or approve work schedules that suit their business needs, and can change work schedules at any time. Sometimes employers involve employees in decisions about scheduling, but are not required to do so.
Does an employee decide when they are going on vacation?
The employer controls scheduling within standard hours of work, including when an employee will take their vacation. Operational needs may require that employees take their vacation during slow periods. The employer and employee often discuss when an employee wants to take vacation, but in the end it is the employer’s decision.
If an employer and employee cannot agree on when the vacation will be taken, the employer sets the vacation date. The employer must give the employee 15 days’ notice before the vacation is to be taken, and cannot divide the vacation into periods shorter than one week. Employers can choose to schedule their employees' vacations as part of an annual shut down.
Can a salary include some overtime?
Yes, employers and employees can agree on a salary that includes a specific amount of overtime. Agreements should be made before any overtime is worked and must clearly identify wages for working more than the standard hours. Clearly written agreements can save future disagreements.
For example: An employee earns a salary of $700 per week and is expected to work a 50-hour week. This agreement means the employee is working 40 regular hours and 10 hours of overtime each week as part of the salary. To calculate an hourly wage rate for the salary, the overtime hours are first converted to standard (regular) hours by multiplying them by 1 ½.
In this example
These are then added to the regular hours:
The hourly wage an employee should be paid for regular hours worked is then calculated by dividing the salary by the total number of regular hours:
For the overtime hours worked, the employee must be paid at 1 ½ times this hourly wage:
If the employee works more than the agreed 50 hours, the employee must be paid at the overtime wage for those hours.
Changing the standard hours of work for overtime
Employers are responsible for scheduling employees, according to the standard hours of work (8 hours in a day and 40 hours in a week). Work beyond these hours is overtime. When the needs of the business cannot be accommodated within these standards, employers may apply to Employment Standards for a permit to modify the daily hours or the weekly hours. For Employment Standards to consider a permit, the agreement of a significant majority of the affected employees is usually required.For example, an employer can apply to extend the work day to 10 hours before paying overtime, or they could apply for a permit that would allow the employer to average the hours over a 4 week period to better meet the needs of their business.
How do I apply for a permit?
Download applications forms from www.manitoba.ca/labour/standards/forms.html or by calling Employment Standards. The completed application can be dropped off, mailed or faxed to the nearest Employment Standards office.
More information can be found on the Averaging Permits fact sheet.
Can employees and employers choose to use a different day as a general holiday?
Yes, sometimes employers and employees would rather move a general holiday to a different day. The employer, with the written agreement of the majority of the employees, or by their collective (union) agreement can choose to substitute a different day in the place of a general holiday as long as the substituted day off is within 12 months of the general holiday. For example, if December 27 is substituted for Victoria Day, Victoria Day becomes a regular workday and December 27 is deemed a general holiday.
Is there flexibility in non-monetary issues like breaks and weekly day of rest?Yes, the employer does control scheduling and has some flexibility regarding when employees take their break or get a day off. Some employees do not want to take their breaks or, especially in seasonal industries, want to work on their day off if there is work available. When employees, if requested by the employer, choose to work through their breaks, or do not take a day off, they must be paid properly. Employers should discuss the importance of the rest period and breaks with their employee, and should they still wish to work through the break clearly determine how it will effect their pay.
For more information contact Employment Standards:
This is a general overview and the information used is subject to change. For detailed information, please refer to current legislation including The Employment Standards Code and The Worker Recruitment and Protection Act, or contact Employment Standards to ask for advice.
Date Published: November 12, 2013