The impact of significant changes to provincial legislation on farm and ranch employers in Alberta

December 11, 2019 | Justine Abtosway

In our communique dated November 27, 2019, we discussed the proposed changes in Alberta’s Bill 26, Farm Freedom and Safety Act, 2019 to provincial workplace insurance, employment standards and labour standards which impact employers operating farms or ranches in Alberta.

On December 5, 2019, Bill 26 was passed into law as the Farm Freedom and Safety Act, 2019 (the “FFSA”). The FFSA amends the Alberta Agricultural Operation Practices Act (the “AOPA”), the Alberta Employment Standards Code (the “ESC”) and the Alberta Labour Relations Code (the “LRC”).

Although the FFSA does not amend Alberta’s Workers’ Compensation Act (the “WCA”) or Alberta’s Occupational Health and Safety Act (the “OHSA”), the Lieutenant Governor in Council has the power to make regulations regarding these pieces of legislation, among others, under the FFSA. On December 5, 2019, this power was exercised to amend regulations under the ESC, the WCA and the OHSA and to make a new regulation under the AOPA.

The FFSA and its regulations make significant changes to the current provincial workplace insurance, workers’ compensation, employment standards, labour standards and occupational health and safety obligations of employers operating farms or ranches in Alberta. These changes limit the employment standards obligations under the ESC of large farm or ranch employers and give these employers the opportunity to insure their workers privately or under the WCA. Smaller farm or ranch employers are no longer required to insure their workers or to comply with employment standards obligations under the ESC. As well, farm or ranch employers no longer have labour standards obligations under the LRC or occupational health and safety obligations under the Occupational Health and Safety Code 2009 Order (the “OHSA Code”) and the Occupational Health and Safety Regulation (the “OHSA Regulation”).

All of the changes except for the LRC changes come into force on January 31, 2020. The LRC changes are retroactive and came into effect on November 20, 2019. These changes are discussed below.

Changes to Workplace Insurance and Workers’ Compensation

Employers operating farms or ranches paying non-family member workers currently have workers’ compensation obligations under the WCA, including the obligation to insure such workers.

Under the FFSA and its regulations, employers operating farms or ranches, will no longer have workers’ compensation obligations under the WCA. However, large employers operating farms or ranches, with more than 5 waged workers who are non-family members and who have been employed for at least 6 consecutive months, will still be required to have workplace insurance but will have the opportunity to choose between two types of insurance:

  1. private insurance defined in the new AOPA regulation; or
  2. WCA insurance

Smaller employers operating farms or ranches, with 5 or fewer waged workers who are non-family members and who have been employed for at least 6 consecutive months, will no longer be required to insure their workers.

Changes to Employment Standards

Employers operating farms or ranches paying non-family member employees are currently required to comply with employment standards requirements under the ESC except for those relating to hours of work and overtime and overtime pay.

The FFSA and its regulations limit the employment standards obligations that larger employers operating farms or ranches have to comply with under the ESC and exempt smaller employers operating farms or ranches from all employment standards obligations under the ESC, as described below.

Small employers operating a farm or ranch, with 5 or fewer waged non-family member employees who have been employed for at least 6 consecutive months, no longer have obligations under the ESC if they engage in work directly related to:

  1. the primary production of eggs, milk, grain, seeds, fruit, vegetables, honey, livestock, diversified livestock animals, poultry, bees, mushrooms, sod, trees, shrubs or plants;
  2. the primary production of any of the above products in a greenhouse or nursery;
  3. operations that produce cultured fish; or
  4. any other primary agricultural operation specified in the regulations.

Employees who engage in the above type of work are employed in a “farming or ranching operation” within the meaning of the ESC.

Larger farming or ranching operation employers, with more than 5 waged non-family member employees who have been employed for at least 6 consecutive months, do not have to comply with employment standards requirements regarding hours of work, overtime and overtime pay, and employees under the age of 18, but must still comply with employment standards requirements under the ESC regarding:

  • payment of earnings;
  • employment records;
  • minimum wage;
  • vacation and vacation pay;
  • general holidays and general holiday pay;
  • termination notice or pay;
  • layoffs and recalls; and
  • leaves of absence.

Irrespective of their size, employers engaging in operations to produce cannabis in a greenhouse are not considered a “farming or ranching operation” under the ESC. As a result, the farming and ranching rules and exemptions under the ESC will not apply to employers operating cannabis greenhouses.

Changes to Labour Standards

The LRC previously required employers operating farms or ranches paying non-family member employees to comply with labour standards requirements.

As a result of the FFSA, employers operating farms or ranches engaging in the following types of work, subject to the regulations, no longer have labour standards obligations under the LRC:

  1. the primary production of eggs, milk, grain, seeds, fruit, vegetables, honey, livestock, diversified livestock animals, poultry or bees;
  2. operations that produce cultured fish; or
  3. any other primary agricultural operation specified in the regulations.

Employees who engage in the above types of work are employed on a “farm or ranch” within the meaning of the LRC. These employees no longer have labour standards rights under the LRC including the ability to unionize. Conversely, employees of a greenhouse, mushroom farm, nursery or sod farm still have labour standards rights and their employers have corresponding obligations under the LRC.

Changes to Occupational Health and Safety

The OHSA currently requires employers operating farms or ranches paying certain non-family member employees to comply with basic occupational health and safety requirements.

The FFSA’s regulations no longer require employers with farming and ranching operations to comply with occupational health and safety requirements under the OHSA Code or the OHSA Regulation except as expressly provided in the OHSA Code or the OHSA Regulation. The following types of work qualify as a “farming and ranching operation” under the OHSA Code and the OHSA Regulation:

  1. the production of crops, including fruits and vegetables, through the cultivation of land;
  2. the raising and maintenance of animals or birds; or
  3. the keeping of bees.

Farming and ranching operations do not include:

  1. the processing of food or other products from operations involving:
    • the production of crops, including fruits and vegetables, through the cultivation of land,
    • the raising and maintenance of animals or birds, or
    • the keeping of bees,
  2. the operation of greenhouses, mushroom farms, nurseries or sod farms;
  3. landscaping; or
  4. the raising or boarding of pets.

As a result of these changes, employees working at farming and ranching operations no longer have occupational health and safety protections or rights under the OHSA Code and the OHSA Regulation and their employers do not have any corresponding obligations.

Conclusion

Employers operating farms or ranches in Alberta should be aware of significant changes to their provincial workplace insurance, workers’ compensation, employment standards, labour standards and occupational health and safety obligations made by the FFSA and its regulations. These changes limit the employment standards obligations under the ESC of large farm or ranch employers and give these employers the opportunity to insure their workers privately or under the WCA. Conversely, smaller farm or ranch employers are no longer required to insure their workers or to comply with employment standards obligations under the ESC. Finally, all farm or ranch employers no longer have labour standards obligations under the LRC or occupational health and safety obligations under the OHSA Code and the OHSA Regulation.

Due to these significant changes to the rights of farm or ranch employees and the corresponding obligations of their employers, it is possible that the FFSA and its regulations will be challenged, resulting in further changes. Miller Thomson will continue to monitor these potential changes and will provide further updates, if and when, they occur.

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