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A Guide to Employment Standards in Agriculture


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.



Employment Standards in Agriculture at a glance

The chart below lists the most common Employment Standards provisions and to whom they apply in agriculture:

Employment
Standards
Provision
Workers Employed by
Agricultural Companies
that Provide Services
to Farms
Farm Workers in
Climate
Controlled
Facilities
Farm
Workers,
Employed on
a Farm, by a
Farmer
Farm
Workers
Employed
by Family
Members
Equal Wages Yes Yes Yes Yes
Payment of
Wages
Yes Yes Yes Yes
Employment
Records
Yes Yes Yes Yes
Minimum Wage Yes Yes Yes No
Termination
Notice
Yes Yes Yes No
Child
Employment
Yes Yes Yes No
Vacations Yes Yes Yes No
Weekly Day of
Rest
Yes Yes Yes No
Work Breaks Yes Yes Yes No
Unpaid Leaves Yes Yes Yes No
Restrictions on
Deductions from
Pay
Yes Yes Yes No
Hours of Work
and Overtime
Yes Yes No No
Reporting Pay Yes Yes No No
General Holidays Yes Yes No No

 


What are climate-controlled facilities where all or substantially all of 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.

If all, or substantially all, of the employee's work is performed in climate-controlled facilities, like some hog barns or greenhouses, they are covered by The Employment Standards Code, even if they work outside for part of their duties.

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.

An example of this is an employee of a vegetable farm, who works outside tending to the crop for part of the year and then works in a climate-controlled facility during the winter for grading, packaging, and shipping.


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.


Payment of Wages

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. 


Employment Records

What records are employers required to maintain?

Employers must keep records for all employees that show:

  • Name, address, date of birth, and occupation
  • The date the employment started
  • The regular wage and overtime wage at the start of employment and whenever the wage rate changes
  • The regular and overtime hours of work, recorded separately and daily
  • Date wages are paid and the amount paid on each date
  • Deductions from wages, and the reason for each deduction
  • If applicable, overtime that is banked with the written agreement of the employee and employer and the dates the employee takes the banked time off with pay
  • The dates on which general holidays are taken
  • The employee’s hours of work on a general holiday and the wages paid
  • Start and end dates of annual vacations, the period of employment in which the vacation is earned, and the date and amount of vacation wages paid
  • The amount of any outstanding vacation wages when the employment ends and the date this is paid to the employee
  • Copies of documents on maternity leave, parental leave, compassionate care leave or other leaves, including dates and number of days taken as leave
  • Dates of termination of the employment
  • Copies of work schedules 

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.


Equal Pay

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. 


Minimum Wage

What is the minimum wage?

Currently, minimum wage is $10.45 per hour in most industries. 

Effective October 1, 2014 minimum wage will increase to $10.70 per hour.


Ending Employment

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: 

 

Period of Employment

Notice Period

At least 30 days but less than one year

One week

At least one year

Two weeks 

 


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. 

Period of employment

Notice period

At least thirty days but less than one year

One week

At least one year and less than three years

Two weeks

At least three years and less than five years

Four weeks

At least five years and less than ten years

Six weeks

At least ten years

Eight weeks

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:

  • When employees are placed on a temporary layoff period of no more than 8 weeks in a 16 week period. There are additional considerations for determining the layoff period for temporary help employees. See Temporary Help Agency fact sheet.
  • When the employee works in the construction industry 
  • When the employer can prove just cause, see Just Cause fact sheet
  • When employment is for a specific length of time or a specific task or job
  • When the employee has substantial control over whether or not to accept work and is not penalized by the employer for choosing not to work, except for temporary help employees who are entitled to notice if they regularly work more than 12 hours per week
  • If the employer acts in a manner that is improper or violent toward the employee
  • Under The Elections Act, election workers can be terminated for specific reasons by the person who appointed them. The worker can appeal to the Legislative Assembly

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 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. 


Young Employees

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. 


Vacations and Vacation Pay

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.


Work Breaks and Weekly Day of Rest

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. 


Unpaid Leaves

What leaves are available to employees?

There are ten unpaid leave options for employees:

Type of leave Length of leave Purpose of leave
Maternity Leave 17 weeks For an employee expecting to give birth to a child
Parental Leave 37 weeks For parents to care for their new child
Family Leave 3 days For an employee to deal with family responsibilities or personal illness
Compassionate Care Leave 8 weeks For an employee to care for a very ill family member
Leave for Organ Donation 13 weeks For an employee to donate an organ or tissue
Bereavement Leave 3 days For an employee to deal with the death of a family member
Leave for Reservists When needed for service For an employee in the Canadian Forces Reserve who needs time to serve
Leave for Citizenship Ceremony 4 hours For a new Canadian to receive their certificate of citizenship
Leave Related to the Death or Disappearance of a Child

If the child has disappeared 
If the child has died
52 weeks 
104 weeks
For parents dealing with the death or disappearance of a child that occurred as a result of a crime
Leave Related to Critical Illness of a Child 37 weeks For parents to provide care and support to a critically ill child

 


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.


Deductions from Wages

What can be deducted from employees' wages?

 

The general rule is employers can only make deductions from wages when these are:

  • Required by law (i.e. statutory deductions)
  • For something for which employees agree to pay and is of a direct benefit to them, or
  • To compensate for any cash advances or payroll errors. 

Examples of what can be deducted from employees’ wages include:

  • Pay Advances
    • Employees and employers should agree on how and when to repay the money when the advance is given, such as paying in regular instalments or in one lump sum.  However, no interest, service charges, or any other fees related to the advance may be deducted.
    • If employers and the employees cannot agree on how and when the cash advance will be paid back, employers can deduct the amounts equal to what would be allowed if they had a garnishment under The Garnishment Act.
  • Payroll Error Corrections
    • Employers can correct any payroll errors as soon the employee or employer notices them. Failing to deal with the error immediately could be considered agreeing to a new wage. Employees and employers should agree on how and when to make the correction, such as paying in regular instalments or in one lump sum. 
    • If employers and the employees cannot agree on how and when the payroll error will be corrected, employers can deduct the amounts equal to what would be allowed if they had a garnishment under The Garnishment Act.
  • Cost of Tools
    • Employers can only deduct the amount agreed to by employees and only if: a) the tools remain the property of employees; b) are not unique to the particular employer; c) are available for purchase from different suppliers; d) can reasonably be expected to be used at different employers in the same occupation; e) are voluntarily bought from the employer instead of another supplier.  
    •  If the employer and employee cannot agree on how and when the employee will reimburse the employer for the cost of the tools, the employer can deduct the amounts equal to what would be allowed if they had a garnishment under The Garnishment Act.
    • Employers cannot deduct the cost for tools that are required by law. 
  • Photo Radar Tickets or Red Light Camera Tickets
    • Employers may deduct the minimum amount payable if employees give written consent to do so.  
  • Cost of Courses and Training
    • Only sometimes.  Employers cannot charge an employee for a course that has no value to them outside of the workplace.  This includes most mandatory employer-specific courses.  Employers may deduct the cost for all or part of a course or training that directly benefits their employees if they voluntarily attend and agree to pay. 
  • Cost of Room and Board
    • With employees’ consent, employers can charge for room and board if employees have no other practical options for obtaining meals and lodging.  The amount employers are allowed to deduct cannot reduce employees’ earnings below minimum wage for the pay period by more than $7 per week for the room and by more than $1 for each meal.

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:

  • Fees to cash cheques
  • Cost of damage to company property and vehicles (i.e. insurance deductible, parking tickets, or other violations, with the exception of photo radar ticket or a red light camera tickets)
  • Cost of lost, stolen or broken tools, equipment, products, or faulty service
  • Cost of cash or inventory shortages, dine & dashes, or drive offs
  • Cost of personal safety equipment
    • Safety equipment is an employer’s responsibility.  There are exceptions for safety headwear and some safety footwear.  Contact The Workplace Safety and Health Branch at 204-945-3446 or visit their website safemanitoba.com for more information.
  • Cost of a uniform

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.


General Holidays

What are the general holidays in Manitoba?

There are eight general holidays throughout the year:

  • New Year's Day
  • Louis Riel Day (3rd Monday in February)
  • Good Friday
  • Victoria Day
  • Canada Day
  • Labour Day
  • Thanksgiving Day
  • Christmas Day

Most employees are paid general holiday pay for these days whether they work or not. 

General Holiday

2013

2014

2015

New Year's Day

January 1

January 1

January 1

Louis Riel Day

February 18

February 17

  February 16

Good Friday

March 29

April 18

April 3

Victoria Day

May 20

May 19

May 18

Canada Day

July 1

July 1

July 1

Labour Day

September 2

September 1

September 7

Thanksgiving Day

October 14

October 13

October 12

Christmas Day

December 25

December 25

December 25

 


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 example, an employee who always works 8 hours a day, 5 days a week, would get their regular wages for 8 hours 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.

  • For example: an employee who works varying hours each day, and earned $1200 in the 4 weeks before the holiday, is entitled to general holiday pay of $60 ie.  $1200 ×5%=$60

Do all employees receive general holiday pay?

All employees receive general holiday pay unless:

  • They are scheduled to work on a general holiday, but are absent without the employer's permission.
  • They are absent without the employer's permission from their last scheduled workday before the holiday, or their first scheduled workday after the holiday.

Election officials, enumerators and any other temporary person appointed under The Elections Act are not entitled to general holiday pay.


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. 


Reporting Pay

How much are employees paid for reporting to work?

When an employer decides to cancel shifts or to send employees home early, those scheduled to work more than 3 hours, and

  • Work less than 3 hours, must be paid for at least 3 hours
  • Work more than 3 hours, must be paid for all hours worked                                                                                                 

If employees are scheduled to work less than 3 hours, they must be paid for their entire scheduled shift.


Overtime

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: 

Sun Mon Tue Wed Thu Fri Sat   Total Regular Overtime
  8 8 8 8 8 8 48 40 8
  8 6 6 8 10   38 36 2
  10 6 10 6 10   42 36 6
7 6 8 7 7 8   43 40 3

 


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.

Employees and employers can agree, as part of the terms of employment, that a certain amount of overtime is required.   Overtime is voluntary or by agreement, except in declared emergencies.


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:

  • For each hour of overtime worked, 1 ½ hours of time is banked, which is paid at the regular wage rate when the employee takes the time-off;
  • Employers must schedule time-off during the employee’s regular hours;
  • Employers must provide the time-off within three months of it being earned, unless Employment Standards authorizes a longer period.

Employer Flexibility

The 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 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.


Scheduling

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.


Hours of Work and Overtime

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
10 overtime hours × 1.5 = 15 regular hours

These are then added to the regular hours:
40 regular hours + 15 regular hours = 55 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:
$700 salary ÷ 55 regular hours worked = $12.73/hour

For the overtime hours worked, the employee must be paid at 1 ½ times this hourly wage:
$12.73/hour × 1.5 = $19.10 overtime 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.


General Holidays

Can employees and employers choose to use a different day as a general holiday?

Employers may substitute another day for a general holiday for the purposes of general holiday pay and wages for hours worked on the day:

  • Under a collective (union) agreement, or
  • With the written agreement of a majority of the employees. This does not need to be approved by Employment Standards but the employer should keep a copy of the agreement.

The substituted day must be within 12 months of the general holiday.

While retail businesses have the option to substitute, some must not be open on Canada Day (July 1), New Year's Day, Good Friday, Easter Sunday, Labour Day or Christmas Day. These businesses can be open Sunday shopping hours on Louis Riel Day, Victoria Day and Thanksgiving Day if there is a by-law in place. See next question for further details.


Non Monetary Issues

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:

Phone:     204-945-3352 or toll free in Canada 1-800-821-4307

Fax:           204-948-3046

E-mail:     employmentstandards@gov.mb.ca

Website:  www.manitoba.ca/labour/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, The Construction Industry Wages Act , The Worker Recruitment and Protection Act, or contact Employment Standards.



Date Published: September 9, 2014

 

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