Better Decisions: Understanding the rules that govern your workplace

Saturday, May 10, 2008

Being aware of your rights and obligations under these key pieces of legislation makes good business for all producers employing workers on their farms

by GARY MAWHINEY

Many farmers today can recall when there were very few regulations or guidelines that one had to follow in order to be a successful producer.

But, as the song goes, "the times they are a changing" and farming is no different. The latest regulation is the Occupational Health and Safety Act (OHSA), which came into effect for farms employing paid workers on June 30, 2006. Other regulations, which producers must take into account if they have employees, are the Employment Standards Act (ESA) and the Workplace Safety and Insurance Act (WS&IA).

These three pieces of legislation have the most impact on an agricultural producer, but are by no means all of the regulations governing farming. Others include the Employment Insurance Act and Canada Pension Plan. Both of these are federal acts, while the OHSA, ESA and WS&IA are covered under provincial legislation.Occupational Health and Safety Act.

The coverage of OHSA was extended to agriculture in response to a proposal put forward by the agricultural sector through the Labour Issues Co-ordinating Committee (LICC). The LICC is a coalition of about 20 agricultural commodity and farm organizations.

The key feature of the OHSA is that it sets out general principles, duties and rights for workers and employers. It is based on the Internal Responsibility System, which relies on the co-operation of the employer, supervisor and worker in addressing health and safety issues in the workplace. Another feature of the act is that it prohibits reprisals from the employer and provides for enforcement by inspectors. Regulations specify how the general duties in the Act are to be carried out.

Under the OHSA, employers must take every reasonable precaution for the protection of workers and provide information, instruction and supervision to them. They will advise workers and supervisors about hazards in the workplace, as well as provide, maintain and ensure proper use of equipment, materials and protective devices.

Workers also have some key duties under the act. They have to work in compliance with the OHSA and are required to use equipment and protective devices. They must also report hazards and contraventions of the act to a supervisor or the employer. Workers must operate equipment and work in a safe manner and not engage in pranks, contests or rough conduct.

Being an employer under OHSA has added some responsibilities to farmers. You were probably doing these things previously, but they have now been formalized. The Farm Safety Association has developed a kit with templates and materials that are needed according to the OHSA. All producers desire a safe and happy workplace and there are now resources available to farmers to help achieve that goal.

Workplace Safety and Insurance Act (WS&IA). This Act has been in place much longer than the OHSA and farmers are more familiar with its rules and regulations. Many people confuse the two acts and it is easily done, as there are cross-compliance issues in some instances.

All farm operations are responsible to carry appropriate Workplace Safety and Insurance Board (WS&IB) coverage for all workers, unless documentation or rulings have been obtained from the board stating otherwise. Appropriate documentation comes in the form of Clearance Certificates and Independent Operator Rulings issued by the WS&IB.

Sub-contractors or custom farm operators are where these rulings come into play for the most part. If the custom farm operator provides you with one of these documents, the workers are not considered yours, so there is no need for you to extend WS&IB coverage to them. However, if they cannot provide this documentation, in order to protect yourself and your farm from possible legal ramifications should an injury occur, it is necessary to add them to your coverage.

As soon as you have made a decision to hire a worker or custom farm operator, it would be in your best interest to contact WS&IB. They will be able to tell you what is needed in order to protect your business as well as yourself.

Employment Standards Act. The ESA was revised in 2000 and provides regulations regarding wages, overtime and working conditions. Included in the working conditions are things like vacation pay, hours of work and rest periods. The act also lays out what can be charged for housing and meals for workers.

Under the ESA, there are four categories of agricultural workers. A person employed on a farm is a "farm worker," while "harvesters" are a special category of farm worker. The other two designations are "near farmers" and "landscape gardeners." A "near farmer" is defined as someone involved in mushroom growing, growing of flowers, trees and shrubs for retail or wholesale trade.

The growing, transporting and laying of sod as well as breeding and boarding of horses are included in near farming. The keeping of fur-bearing mammals, as defined in the Fish and Wildlife Act 1997, is also considered near farming.

Producers are required to keep written records on all people that they hire. All employee records must be kept in such a manner that they would be available for inspection and they must be kept for a period of three years.

There are exemptions to certain parts of the act for each category. Should any producer have questions pertaining to Employment Standards, they should contact the ESA Information Centre.

It makes good sense from a business perspective that all producers employing workers become knowledgeable on these three pieces of legislation. Some preventative planning may save you time and dollars if you are aware of your rights and obligations. BF

Gary Mawhiney is Human Resources Management Program Lead, Ontario Ministry of Agriculture Food and Rural Affairs. Email: gary.mawhiney@ontario.ca