Canadian Employment Law Today

Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2020 A FOREIGN worker on a British Columbia farm was not a farm worker exempt from over- time entitlement because his primary respon- sibilities were not related to farm work even though he spent some time performing such work, the B.C. Employment Standards Tribu- nal has ruled. Lazy F-D Ranches and Hay Sales is a com- pany operating a farm in Knutsford, B.C. that employed foreign worker Michal Kozisek as an agricultural equipment technologist. Kozisek started on the farm on July 3, 2017 under a Labour Market Impact Assessment (LMIA) that determined there was a need for Kozisek's skills and that his employment wouldn't neg - atively affect the labour market in Canada. When the LMIA expired in October 2017, Lazy F-D Ranches obtained a second LMIA that was valid until July 2018. Kozisek had an employment contract set - ting out his job duties, which included in- specting, repairing, maintaining, testing and ordering parts for equipment such as tractors, trucks and other machinery as well as training and coaching general ranch workers, seasonal workers and contractors working with the equipment. He was also expected to maintain logs of inspections and completed work, fol - low all safety rules and procedures and "per- form other general ranch duties as required." The employment contract also set up a wage of $32 per hour and a workweek of 40 hours. Hours worked and duties varied from summer to winter Kozisek's job duties took him all over the farm, repairing equipment in different fields over the course of the summer and he sometimes worked seven days in a row. In the winter, there was much less need to repair farm equipment, so he worked at renovating the farm owner's house. Sometimes, he only worked one or two hours a day during the winter. Lazy F-D paid Kozisek once per month for 160 hours, regardless of the number of hours he actually worked. They had an informal ar - rangement that any extra hours worked in the summer were banked and paid out during the winter when he worked less. On Aug. 30, 2018, Kozisek filed an em - ployment standards complaint alleging that the farm had failed to pay him for all hours worked, including overtime. He acknowl- edged that he did both farm work and agri- cultural equipment maintenance, but the lat- ter took up the majority of his time. Lazy F-D disputed that he was entitled to overtime pay, arguing that it was an agricultural operation and Kozisek was a farm worker. Under the B.C. Employment Standard Regulation, farm work - ers were not entitled to overtime pay. Kozisek followed up with a second com- plaint on Jan. 9, 2019, making the same al- legations up to that date. He submitted time sheets that he had drawn up for his monthly pay that showed that, in the summer, he com- pleted some work that could be characterized as clearing or cultivating land and used farm equipment as part of growing and harvesting crops, in addition to his duties repairing and maintaining the equipment. In August 2017, he spent 12 days doing harvest-related work, 12 days maintaining machinery and six days doing both. The following months, he spent 18 of 27 days doing maintenance-related work, five days harvesting work and four days doing both. From January to March, he mostly did work such as renovations, snowplowing, maintaining equipment and running errands. The following summer, his tasks were divided between maintenance and agricultural work. An employment standards delegate found that the worker performed some work tasks related to the harvesting and cultivation of land for an agricultural operation — the work description for farm workers exempted from overtime by the regulation — but his main role did not reflect that of a farm worker. Overall, the worker spent more time doing non-agricultural work and, during the winter, nearly all of his work wasn't agricultural. His job title — agricultural equipment technolo - gist — and principal employment activities indicated that he wasn't a farm worker and his "employment as a whole" didn't meet the definition of a farm worker. The employment standards delegate deter - mined that Kozisek was entitled to wages for work performed, even after his work permit lapsed. Lazy F-D appealed, arguing that the delegate relied too heavily on the employment contract's job description rather than the sub - stance of the work he actually performed. It claimed that Kozisek's tasks consisted of 80% farm work and 20% agricultural equipment work and his principal employment responsi - bilities were related to farm work. The tribunal noted that the regulation de- fined a farm worker as "a person employed in a farming, ranching, orchard or agricultural operation and whose principal employment responsibilities consist of" duties related to cultivation and harvesting of agricultural products, the land upon which they are grown or using farm machinery and equipment for agricultural purposes. In Kozisek's case, the tribunal disagreed with Lazy F-D that the delegate should have looked more closely at the amount of time Kozisek spent on each task. The issue was Kozisek's "principal employment responsibilities," said the tribunal. The tribunal found that, under the regula - tion, the amount of time spent on farm worker tasks was less important than what the em- ployee's most important responsibilities were. Kozisek was hired because he had mechanic skills that had been determined under the LMIA and work permit that no Canadian was available to perform. Therefore, Kozisek's most important, or principal, employment respon - sibilities were that of repairing and maintain- ing the farm's equipment, which didn't fall un- der the regulation's definition of farm worker, said the tribunal. Lazy F-D's appeal was dismissed and it was ordered to pay Kozisek $57,843.98 in wages for work performed including overtime. For more information, see: • Lazy F-D Ranches and Hay Sales Ltd. (Re), 2020 BCEST 110 (B.C. Emp. Stds. Trib.). Employee performed some work related to agricultural products, but primary responsibilities were fixing and maintaining equipment BY JEFFREY R. SMITH No overtime exemption for B.C. farm worker ABOUT THE AUTHOR Jeffrey R. Smith Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@keymedia.com, or visit www.employmentlawtoday.com for more information. The worker was paid for 160 hours each month, despite seasonal variations in his hours.

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