The Employment Standards Branch (ESB) is British Columbia's "Labour Board"
If you work in BC, your company is subject to a large number of regulations that are designed specifically to protect silviculture workers. Regardless of whether you work for an Alberta or BC company doing work in BC, if you are doing work in BC, then your company is still subject to those regulations!
Tree planters in western Canada need to know their rights. All BC Planting Companies must pay 100% of wages in full, every two weeks. Also, minimum wage requirements supercede piecework compensation when the minimum wage equivalents work out to more than the piecework earnings.
First of all, ALL planters should keep a daily journal in which you record your tree numbers on a daily basis, and you record when you left camp or your motel, and what time you returned to camp or your motel at the end of the day. Everybody, from the slowest rookies to the fastest vets, should ALWAYS keep a written daily record of how many trees you planted each day, the price, and how long you worked.
First-year tree planters in BC should be aware that all planting companies are required to pay you, at a minimum, the equivalent of minimum wage ($10.25 per hour as of May 1st, 2012) for all hours worked in a two-week pay period, as determined by daily "portal-to-portal" calculations. Portal-to-portal means that your starting time is determined to be when your vehicles leave camp for the block in the morning, and your ending time is determined to be when you return to camp for dinner. Therefore, travel time to and from the blocks is to be included in calculations of hours worked. Companies are not allowed to arbitrarily deduct hours for "break time" in calculating the hours (this is important for "top-up" to minimum wage for slow workers, and in terms of eligible hours for EI for all workers). In terms of pay, applicable overtime must also be factored into calculations. If your piece-rate earnings do not exceed the equivalent of minimum wage and applicable over-time during a given two week pay period, then the company must top up your earnings to match minimum wage for the period. The minimum-wage top-up regulations will mainly be applicable to first-year planters who are still learning to plant quickly.
If you are a veteran planter at a company that employs first-year planters, we appreciate you sharing this information with the rookies. Let them know about the regulations, and tell them that they can find detailed information on this website. Also, you should be aware that even if you're a vet, if you're on a contract where you're not making good money, your company may still have to top you up to meet minimum wage guidelines! In the spring/summer 2014 season, I heard rumours of several BC companies working on contracts where some of the slower VETS were making less than $150 per day on average. If this was true, those vets might need to have been paid top-up! Basically, in BC, if you're working eleven hour days, and you're not making at least $138.58 per day (averaged over a two-week pay period), then you should be getting topped up. Go to the bottom of this page to see a specific example for how to calculate minimum wages.
(Numbers on this page were last updated on February 1st, 2014, to update the Statutory Holiday Pay rate percentage).
Click on any of the following links to learn more about your rights as silvicultural workers!!
BC Employment Standards Act & Regulations (complete outline)
ESA Section 17 - Paydays
ESA Section 18 - If Employment Is Terminated
ESA Section 21 - Deductions
Silviculture Workers' Fact Sheet
Employment Standards Complaint Submission
Here is an important link. This is the first step in the dispute resolution process:
If you feel that you are not being paid in full because of discrepancies between your daily tallies and the tallies on your pay stubs, OR that you are not being paid 100% of your wages every two weeks, you should seek government assistance to resolve your problems. The Employment Standards Branch is there to help workers - that's their job. There is no need for companies to pretend that they aren't able to pay out 100% of wages, bi-weekly, in this day and age. If they fail to pay you on time, you shouldn't be working for them, because there is a much higher chance that you WILL get screwed if the company runs into financial difficulties. Several tree planting contractors have unfortunately either gone bankrupt or failed to pay their employees in the past several years, and their planters have been left with no means of recovering their lost wages. This sort of situation has NOT happened at any companies that pay in full, bi-weekly. However, these payroll problems have unfortunately reflected poorly on the many reputable companies which DO pay their employees regularly and properly.
To take steps to resolve your situation, if your company has not paid you properly, you first need to download the self-help kit (the link can be found earlier on this page). You fill out some forms and document your case, which will take you a couple hours. If you haven't been paid properly, it IS worth your time to go through this process. A number of planters have done so in the past year, and had their cases resolved successfully. This dispute resolution process is helping to ensure that planting companies are changing the way they do their payroll systems, in order to obey the law.
If you are scared to complain to your company during the season because you think that you'll be put in bad land, or fired, just quietly keep a very detailed record of your hours (portal-to-portal) every single day, along with what you planted and the prices, and keep all your paysheets. You can deal with the situation at the end of the summer, after you're done working for your employer, when they can no longer penalize you. You are allowed to file a complain up to six months after the infractions, which basically means you have a few months after you finish planting to get everything organized and submit your complaint. And you can always find a better company the following season that treats you respectfully and pays you according to the law.
You should know how the potential need for a minimum wage top-up is assessed:
"Work time" per day is basically calculated as a portal-to-portal time frame. A company is generally not allowed to deduct time for "voluntary breaks" for lunch, etc., during the planting day. Technically, the wording of the regulation is that for every 5 hours worked, the company must allow a 30 minute break, and in the next sentence, it states that, if an employee works ("voluntarily") during those breaks, then they must be paid. That would mean on an 11 hour day, the employee is allowed two breaks of 30 minutes each. The catch to this is that if an employer deducts "time worked" for such breaks, the breaks must be documented and signed by the employee on a daily basis, to confirm that they have in fact taken the two 30 minutes breaks. This is almost impossible. I don't know of any company that does this, and no company SHOULD do this. The company wouldn't be allowed to have a standard form with standard times - each planter would have to have their actual break times documented, and since everyone takes breaks at different times, it would be a logistical nightmare. If you're working for a company that makes you sign a form each day to confirm that you took two breaks during the planting day, just so they can write you down for less hours of work, then it's time for you to look for a different company. Incidentally, bagging-up doesn't count as a break. If a company were to try to cut down recorded hours by saying that you're taking a break, then they would actually have to force you to sit and not work during that time.
Anyway, back to your portal-to-portal day: driving time is included in your work day. So if you leave your motel at 7am, drive to the block, start planting at 7:45am, take a twenty minute break from 10:30am to 10:50am while you fix your boots and eat lunch, have a move into a new piece so you're not planting from 12:35pm to 12:55pm, plant all afternoon until 4:30pm, get a flat tire on the way home, and don't arrive at the motel until 6pm, then your work day is calculated as 11.0 hours (from 7am to 6pm).
Minimum wage in BC (since May 1st, 2012) is $10.25 per hour. Overtime in BC is calculated at time and a half for all hours past 8 and up to 12 in a single day. Past 12 hours in a day, the extra hours are calculated at double-time. Also, hours past forty in a week are calculated at time and a half. I'll provide a detailed example below.
If you are paying camp costs in BC, the legal maximum per day is $25.00 plus GST on top. (A previous error in this paragraph was corrected on February 1st, 2014).
Let me show you an example. I've created two fictious weeks of work, for a company that normally works 4&1 shifts, to show you how overtime is calculated. The exact dates don't matter, but in this example I've used dates in February, because even a coastal vet can be affected by this. The pay period runs from a Sunday morning until a Saturday evening, 14 days in total.
Day 01 - Sunday, February 19th - Day 1 of shift. Planter worked 11 hours from 7am to 6pm (including travel time, etc.).
Day 02 - Monday, February 20th - Day 2 of shift. Planter worked 11 hours, 7am to 6pm.
Day 03 - Tuesday, February 21st - Day 3 of shift. Crew got a flat on the way home, got home an hour late, was out 12 hours, 7am to 7pm.
Day 04 - Wednesday, February 22nd - Day 4 of shift. Last day of shift, wrapping up blocks, planter worked 7 hours from 7am to 3pm.
Day 05 - Thursday, February 23rd - Day off from planting.
Day 06 - Friday, February 24th - Day 1 of shift. Planter worked 11 hours, 7am to 6pm.
Day 07 - Saturday, February 25th - Day 2 of shift. Planter worked 11 hours, 7am to 6pm.
Day 08 - Sunday, February 26th - Day 3 of shift. Planter worked 11 hours, 7am to 6pm.
Day 09 - Monday, February 27th - Day 4 of shift. Started snowing in late morning, only worked 6 hours total.
Day 10 - Tuesday, February 28th - Snow day, didn't plant.
Day 11 - Wednesday, March 1st - Snow day, didn't plant.
Day 12 - Thursday, March 2nd - Snow day, didn't plant.
Day 13 - Friday, March 3rd - Day 1 of shift. Planter worked 11 hours, 7am to 6pm.
Day 14 - Saturday, March 4th - Day 2 of shift. Planter worked 11 hours, 7am to 6pm.
In this example, the total hours would be calculated as follows:
Note that on the first Saturday in the above example, you would normally expect an eleven-hour day to be recorded as 8 regular and 3 time-and-a-half hours. However, since the employee has already reached their 40-hour week after the first hour, all hours after that first hour have to be recorded at time-and-a-half.
In the example above, there are a total of 40 + 30 = 70 hours at straight time, and 23 + 9 = 32 hours at 1.5x. Statutory holiday pay is added first to base wages at 4.0% of total (incidentally, a company is technically allowed to pay actual hours for the stat and then time-and-a-half for the worked hours, but that's really confusing and almost all companies take the easier option of just paying a set 4.0%). After that, vacation pay at 4% is calculated on the base wages PLUS stat holiday (ie. stat holiday and vacation compound in BC). Therefore, the total wages would be:
70 hours x $10.25/hr = $717.50
32 hours x 1.5 x $10.25/hr = $492.00
Add those two together = $1209.50
Add 4.0% statutory holiday pay: $48.38 more
New sub-total: $1257.88
Add 4.0% vacation pay on the above sub-total: $50.32 more
Total minimum earnings for the pay period = $1308.20
If your piece-work rates and production during those two weeks did not result in your gross earnings being at least $1308.20 then your company legally has no choice but to top you up to that amount for your gross earnings.
To put this into quick layman's terms, a single 11-hour day, which is the equivalent of 12.5 paid hours of minimum wage, gives you $138.58. If you're working 11 hour days, portal-to-portal, and you are not averaging around $140 per day, then you are probably entitled to receive a top-up to that amount. You need to figure out your hours and earnings over the entire two-week pay period, using the system above. If your earnings don't meet your minimum wage calculation, you should show the numbers to your company and remind them that they are legally obligated to pay that amount. If your company tries to brush you off and say that it doesn't apply, or tries to say that your hours don't all count, or makes any other sort of excuses, then you should consider one of two options: either file a complaint using the Employment Standards Branch's self-help form, or seek employment elsewhere, immediately. If you're not getting paid according to regulations, other companies are currently looking for planters. There are always good companies out there who are looking for experienced planters.
If you wish to file a complaint, you have six months from the time of the pay period in question to start the process. For spring coastal planters, you would want to file your complaint by sometime around August to late September at the latest. For anyone who has discovered that their company was not topping them up for work performed in May and early June, you'd be able to file a complaint as late as perhaps between mid-November and Christmas, depending on the exact dates of the pay period(s) in question.
I'd like to end by showing a video of a talk by Jennifer Hagen, a Program Advisor at the BC Employment Standards Branch (the official name for the "Labour Board"), who made a presentation at the 2012 WSCA Conference about employment standards in BC (remember that SOME of these regulations also apply in other provinces):
If you are an experienced planter and you think this is all a waste of time, remember that this process HAS helped a number of planters claim the wages that are rightfully theirs. And if you think that you shouldn't ask your company for the money that you are owed, either because you're nervous about it, or you want to "protect" your company, remember one positive thing about these laws. They are designed to protect workers. Companies who pay lower piece-rates than their competitors will have to pay more money in top-up to their employees. This will force them to raise their bids in the future, and higher bids mean HIGHER WAGES FOR EXPERIENCED PLANTERS. A company that hires a lot of rookies cannot get around this system by giving less hours to inexperienced planters. The only way for companies to prevent being obligated to provide top-ups is to RAISE THE PIECE RATES so the slow planters can earn more than minimum wage. And when piece rates go up, vets make more money. These employment standards will do more to benefit vets than any union ever could. Spread the word ...