Proposed changes under Alberta’s Bill 26, the Farm Freedom and Safety Act, 2019, give large farm and ranch employers the choice of insuring workers through private means or through the public workers' compensation scheme. Further changes exempt employees of smaller farm and ranch employers from minimum employment standards requirements, while employees of larger farm and ranch employers will continue to be exempt from certain hours of work and overtime requirements. All employees of farm and ranch employers will be exempt from all minimum labour standards, including the right to unionize.
Jason Kenney’s United Conservative Party (“UCP”) has proposed significant changes to employment and labour standards affecting the farming and ranching industry. The UCP campaigned on repealing the former New Democratic Party government’s controversial labour and employment changes to the agricultural sector that were encapsulated by Bill 6, the Enhanced Protection of Farm Workers Act (“Bill 6”). With the expected Royal Assent this month of Bill 26, the Farm Freedom and Safety Act, 2019 (“Bill 26”), the UCP will have repealed most of the controversial aspects of Bill 6, including mandatory Workers’ Compensation Board coverage for the agricultural sector, and the elimination of exemptions from employment and labour standards legislation.
Bill 26 passed third reading by the Alberta Legislature on December 4, 2019. Once Royal Assent is given, Bill 26 will amend the Agricultural Operation Practices Act (“AOPA”), the Employment Standards Code (“ESC”) and the Labour Relations Code (“LRC”). It is also anticipated that consequential changes will be made to the Workers’ Compensation Regulation (“WCR”). Bill 26 will not affect changes made to the Occupational Health and Safety Act. A summary of the proposed changes is included below.
Proposed Changes to the AOPA
Currently under the AOPA, farming or ranching employers are not required to have workplace insurance. However, the Workers’ Compensation Act (“WCA”) requires all farm and ranch employers that employ non-family paid workers to have WCA coverage and pay applicable premiums. Bill 26 proposes to amend AOPA to require large farming or ranching employers to ensure their workers have either private insurance coverage authorized by yet-to-be-published regulations or public coverage under the WCA. Farming and ranching employers with five or fewer employees (excluding family members and employees employed by the employer for less than six consecutive months) are exempt from any insurance requirement under AOPA.
While Bill 26 does not affect either the WCA or WCR, it is expected that the government will make consequential amendments to the WCR to exempt small farming and ranching employers from the WCA’s current requirement such employers will maintain coverage for their non-family paid employees. Indeed, the Minister of Agriculture has indicated small farm operations are to be exempt from workplace insurance requirements.
The changes to AOPA are scheduled to come into force on January 31, 2020.
Proposed Changes to the ESC
Currently, the ESC applies minimum employment standards requirements to non-family paid employees of farming or ranching operations but exempts farming or ranching employees from certain hours of work and overtime requirements. The ESC considers an employee to be employed by a “farming or ranching operation” if their employment is directly related to:
- the primary production of eggs, milk, grain, seeds, fruit, vegetables, honey, livestock, diversified livestock animals, poultry or bees (“Agricultural Products”), or
- any other primary agricultural operation specified in the regulations.
Bill 26 proposes to exempt from any application of the ESC all employees who are employed by a farming or ranching operation with five or fewer employees (not counting family members and employees employed by the employer for less than six consecutive months). In addition, Bill 26 proposes to add mushrooms, sod, trees, shrubs, and plants to the list of Agricultural Products, as well as further exempt employees whose employment is directly related to the primary production of an Agricultural Product in a greenhouse or nursery. Additional exemptions may be added by regulation
These changes are scheduled to come into force on January 31, 2020.
Proposed Changes to the LRC
The NDP’s Bill 6 extended the application of the LRC to non-family paid employees of farming or ranching operations. Bill 26 proposes to again have the LRC exclude all farming or ranching employees from any labour standards, including the right to collectively bargain and unionize. Farming or ranching employees are those whose employment is directly related to the following farming or ranching operations:
- the primary production of eggs, milk, grain, seeds, fruit, vegetables, honey, livestock, diversified livestock animals, poultry or bees;
- an operation that produces cultured fish within the meaning of the Fisheries (Alberta) Act; and
- any other primary agricultural operation specified in the regulations,
Farming or ranching operations expressly exclude greenhouses, mushroom farms, nurseries and sod farms.
Assuming Bill 26 receives Royal Assent, these changes will be retroactive to November 20, 2019.
Key Takeaways for Employers
Bill 26 has passed third reading and is expected to receive Royal Asset later this month. Consequently, larger farming and ranching employers will have the option of having insurance coverage either under the existing WCA scheme or through private means, whilst smaller employers will apparently no longer be forced into having any insurance coverage, private or public (although the uninsured employer could invite costly private claims at their own risk). Small farming and ranching employers can expect to be relieved of all employment standards obligations under the ESC, while larger employers will remain exempt only from observing certain hours of work and overtime requirements.
All farming and ranching employers will see no further statutory obligations in respect of the LRC, although any employers who have been unionized since Bill 6 became effective will find no comfort in this. In addition, the labour changes portended by Bill 26 may be short-lived and vulnerable to a constitutional challenge on the basis that the resulting LRC’s exclusion of farm and ranch employees is a substantial interference with their Charter right of freedom of association. In 2001, the Supreme Court of Canada found that Ontario’s repeal of similar legislation unjustifiably infringed this Charter right, declaring Ontario’s legislation unconstitutional to the extent of the infringement. Ontario was required to reverse itself and amend its legislation to comply with the Supreme Court’s ruling. The UCP may have to consider preempting any similar constitutional challenge by amending the LRC further to expressly override the Charter right of freedom of association by utilizing Section 33 of the Charter – the notwithstanding clause.