1455-00-ES 976395 Ontario Inc. o/a Moonfleet, Applicant v. Justin Burry, Roan Burry, Cheryl Starr, Employment Standards Officer, and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 61004978
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Mark Rotensberg and Dave Otters for the applicant; Justin Burry and Roan Burry appearing on their own behalf; Mircho Mirchev for the Ministry of Labour.
DECISION OF THE BOARD; July 24, 2001
This is an employer review of an Order to Pay issued by an Employment Standards Officer.
The Board held a hearing on March 29, 2001 in Toronto.
The issue in this case is whether the individual responding parties, who are employees employed as chicken catchers, are exempted from the right to the payment of vacation pay, overtime pay and public holiday pay under parts IV-VIII of the Employment Standards Act (“the Act”) by section 3(1)(i) of Regulation 325 to the Act. That section states as follows:
(1) Parts IV, V, VI, VII and VIII of the Act do not apply to a person employed,
(i) on a farm whose employment is directly related to the primary production of eggs, milk, grain, seeds, fruit, vegetables, maple products, honey, tobacco, pigs, cattle, sheep and poultry.
There was no dispute about the facts. The claimants were employed as chicken catchers with the applicant (“Moonfleet”). Moonfleet is in the business of providing chicken‑catching labour to farms and processors.
Moonfleet receives requests from farms or processors to supply labourers to catch chickens. The process is straightforward. After Moonfleet receives a chicken-catching request, one of its employees drives a van and picks up the labourers and then transports them to the farm. Transportation may take as little as a few minutes or as much as four hours. Once the chicken catchers arrive at the farm, a foreman dims the lights at the bin where the chickens are kept. This calms the chickens. The chicken catchers then round up the chickens and carry them, 6-10 at a time, to crates on a truck operated by another company, unrelated to Moonfleet. The truck then transports the chickens to a processing plant, also unrelated to Moonfleet. Moonfleet employees do not debeak, pluck or kill the chickens. They simply catch them and carry them from the barn to the truck.
Moonfleet is either paid directly by the farm which requires its services or by the processor. If the processor pays Moonfleet, the processor charges its fee back to the farm.
The Arguments
- There are two issues which arise out of the application of Regulation 325 to these facts:
are the claimants “employed on a farm”?
if so, does chicken-catching constitute “primary production” of poultry?
The Ministry argues that the claimants are not covered by the exemption because they were not employed on a farm. The Ministry’s position is that the claimants must be employed on a farm by the farmer. The Ministry relies on Peel Liquid Carriers Limited E.S.C. 2188. That decision dealt with employees who drive milk trucks for the Ontario Milk Marketing Board. They transported milk from farms to a processing plant. The referee in that case held that the exemption did not apply because, in part, the claimants were not employed by the farm.
Reg. 285(3)(i) (supra) speaks of “a person employed (i) on a farm….”. To my mind, this implies that the individual works on the farm and that there is an employee-employer relationship between him/her and the owner, the farmer. The regulation refers also to a person “whose employment is directly related to the primary production of … milk…” The use of the words “directly” and “primary” would indicate that the person concerned would be involved in activities leading up to the actual production of the milk e.g. feeding, care of, and milking of the cows. In the instant case, it has been established that the claimant was not employed by the farmer(s) in the employer/employee relationship, and although he did spend part of his working day on various farms, he was not involved directly in the primary production of milk. The applicant appears to be arguing that the picking up of milk by the tank truck driver is part of the milk production process, and that, because the farmers pay for the transportation of the milk, they are, in fact, the employers of the tank truck driver. Although this is a somewhat novel argument with due respect, I am unable to accept it. The Ontario Milk Marketing Board is the organization created to act as the sales agent for the farmers. It has the power to set the price of the farmers’ milk to the purchasers, the dairy processors. As part of its function, it arranges, through third party transport facilities, for the collection of milk from the farms and its delivery to various dairies in accordance with demand. The applicant is one of these firms under contract with the O.M.M.B. and to my mind, is not involved directly with the primary production of milk. It is acting solely as a transportation agent for the Board. The claimant was paid by, and received his orders from the applicant, and, therefore, must be considered as having been an employee of the applicant for all purposes.
[emphasis added]
- A similar finding was made by Judge S.L. Hunt McDonald sitting as an umpire under the Alberta Employment Standards Code in Thomson Custom Farms Ltd., an unreported decision dated February 9, 1988. That case involved a company, Thomson, which was in the business of cleaning manure from farms and ranches. Employees of Thomson sought to be paid overtime pay, holiday pay and vacation pay and sought the protection of hours of work limitations. Thomson defended by asserting that an exemption, virtually identical to that contained in the Ontario statute, applied to its employees. The Alberta exemption states:
2(3) The following Divisions and regulations:
(a) Part 2, Division 3, Hours of Work;
(b) Part 2, Division 4, Overtime and Overtime Pay;
(c) Part 2, Division 5, General Holidays and General Holiday Pay;
(d) Part 2, Division 6, Vacations and Vacation Pay;
(e) Part 2, Division 9, Restriction on Employment of Children and regulations made under section 138(1)(e), prohibiting or regulating the employment of individuals under 18 years of age;
(f) regulations under Section 138(1)(d) respecting vacations, vacation pay, general holidays and general holiday pay;
(g) regulations under section 138(1)(f) respecting the minimum wage;
do not apply to employees employed on a farm or ranch whose employment is directly related to
(h) the primary production of eggs, milk, grain, seeds, fruit, vegetables, honey, livestock, game-production animals within the meaning of the Livestock Industry Diversification Act, poultry or bees, or
(i) any other primary agricultural operation specified in the regulations,
or to their employer while acting in the capacity or an employer.
Judge McDonald found:
Applying the facts of the Cuddington case to the case under consideration, I find Castle and Baumgarte were not employees employed primarily in farming and therefore are not exempted from entitlement for overtime, vacation and holiday pay under Section 2(3) of the Employment Standards Code. Neither Castle nor Baumgarte were employees employed on a farm or ranch whose employment was directly related to the primary production of farming products. Rather, they were employees of Thomson which was engaged in a commercial operation to clean up manure for farmers. The second requirement of Section 2(3) of the Code is that the employment must be directly related to the primary production of a farm and I do not view corral cleaning as fitting within that description.
The employer asserted that it was self evident that chicken catchers were employed on a farm since all of their work took place on farms. The employer relied on a number of decisions, all of which were relevant to the primary production issue in this case, but not to the first issue.
Decision
There are only two decisions which have commented on the interpretation to be given to the words “employed on a farm”. Both of those decisions determined that the exemption does not apply to employees who are employed by a company to provide services to a farm. I have no reason to disagree with those decisions. On the face of the statute each of the interpretations advanced by the parties of the words “employed on a farm” are reasonably supportable. However, in my view the key words in the provision are “a farm”. A plain reading of those words mean that the exemption applies to employees who are employed on a single farm. Had the legislature intended the exemption to apply to workers who work on many farms it could have used words such as “employed in agriculture”, “employed on farms” or “employed in farming”. Since the employees in this case were employed by Moonfleet working at many farms, they are not covered by the Regulations.
The Board is also mindful of the principle that exemptions to employment standards are to be read narrowly (see for example Wiley Bros. Ltd. (RE) [1996] O.E.S.A.D. No. 281). Finally, it appears that the purpose of the exemption is the protection of farms. Moonfleet is not a farm, it is a commercial operation (to use the words in Thomson Custom Farms Ltd.) that provides services to farms. As such it does not qualify for the same protection.
As a result of my decision regarding the first issue it is not necessary for me to determine whether chicken catchers are employed in the primary production of poultry.
For all of the foregoing reasons the Board hereby dismisses the application for review.
Disposition
- The application for review is dismissed. The director is to hold money in trust on behalf of the individual responding parties. However, it is difficult to assess from the materials filed how much is owed to each employee. Accordingly, unless the parties are able to agree to the amounts owing, the parties are directed to file submissions by no later than thirty (30) days of the date of this decision.
“Brian McLean”
for the Board
