Ontario Labour Relations Board decision probes agriculture exemption

Wednesday, May 6, 2015

by SUSAN MANN

An Ontario agricultural industry labour spokesman says that an exemption for agriculture under the Employment Standards Act still applies despite an Ontario Labour Relations Board’s recent decision to award an employee some of the vacation and statutory pay he claimed his employer, a greenhouse operator, owed him.

Ken Forth, chair of the agricultural industry’s Labour Issues Coordinating Committee, said the rules under the Employment Standards Act are pretty clear. “I don’t think it (the decision) changes a darn thing,” particularly since employers in primary agriculture are still exempt from paying the vacation and statutory holiday pay.

Juraj Harmaniak was awarded a year’s worth of vacation and statutory holiday pay of $2,660 from his former employer, Leamington-area JC Fresh Farms & Greenhouses, following a recent Ontario Labour Relations Board hearing.

Asked Wednesday by a Better Farming reporter if JC Fresh Farms & Greenhouses will appeal the labour board’s decision, a company official who declined to give his name said: “I would say to you it’s none of your business.”

The official also said he has no comment “and I’m not going to partake in this nonsense.”

Harmaniak filed his claim for the pay on Jan. 14, 2014 after he stopped working at the 32-acre farm, Board vice-chair Christine Schmidt said in her March 5 decision.

He worked there from July 2008 to December 2013 as an assistant grower responsible for managing the type of fertilizer used, setting up and operating irrigation through computer equipment, implementing pest management strategies, and monitoring along with controlling ventilation, light and temperature levels at the different growing phases of the pepper and tomato plants’ production.

He said he didn’t directly touch the plants grown at the farm. About 50 other employees did that work.

Harmaniak, who represented himself at the March 4 hearing in Toronto, argued that since his job did not directly involve working with plants, a provision under the Employment Standards Act that exempts employers from providing vacation and statutory holiday pay for workers on farms in primary agriculture didn’t apply.

He filed a request to the labour relations board to review a decision by an employment standards officer who refused to issue the company with an Order to Pay vacation and statutory holiday pay. The officer determined the exemption applied to Harmaniak and he wasn’t entitled to the pay, the labour board decision said.

Harmaniak “was forthright in his evidence, it is uncontested and I accept it,” Schmidt said in the decision.

She agreed with him the exemption didn’t apply to his situation since he didn’t have “hands on contact with the agricultural products at JC Farms.” The exemption does apply to people working on farms whose employment is directly related to the primary production of agricultural products, livestock and crops, including seeds, herbs, maple products, honey, tobacco and cultured fish.

The board determined that based on his $35,000 salary in 2013, Harmaniak was entitled to vacation pay of $1,400 and statutory holiday pay of $1,260.

However, Harmaniak’s request to be compensated for all five years he worked at the farm was turned down. Schmidt noted in her decision the Employment Standards Act regulations stipulate the time limit to recover vacation and statutory holiday pay is 12 months.

JC Fresh Farms was directed to pay a total of $2,660 in trust to the director of Employment Standards on behalf of Harmaniak within 30 days of the decision being handed down.

Officials from JC Fresh Farms & Greenhouses didn’t attend the hearing. The director of the Ontario Labour Ministry’s Employment Standards branch also didn’t attend.

The labour relations board is described on its website as an independent tribunal with a mandate to provide administrative justice through effective resolution of labour and employment disputes. BF