Tree planting and silviculture jobs involve hard work. Workers often have questions about the labour regulations that apply to their job, and this article includes answers to some common questions regarding employment standards for silviculture workers.

Readers should note that this article focuses specifically on “silviculture workers”, which is defined in regulation and limited to workers in tree planting, brushing, cone-picking, and other associated jobs in forestry where they are paid on a piece-rate basis. This also includes crew leaders and supervisors who are paid piece-rate based on the production of their crew. Silviculture workers that are paid a salary or hourly rate are entitled to minimum wage and the protection of all standard sections of the Employment Standards Act (ESA) and Regulation but are excluded from this discussion focused on Section 37.9 of the Regulation. Workers that are paid piece-rate, which includes the majority of tree planters and brushers and cone pickers, have special protections to help ensure they are properly compensated for their labour.

It is important to note that the Employment Standards Act outlines general principles of employer-employee relationships, while the Employment Standards Regulation (ESR) outlines more clearly defined requirements, including those that apply to specific jobs such as silviculture work.

This article deals specifically with regulations in British Columbia. Due to differences in regulations, a separate article or list of considerations is required for Alberta and other provinces. The information in this article is also subject to updates based on case law decisions, changes in policy interpretations, and changes in minimum wage or prescribed levels of holiday pay and vacation pay.

The current version of the article was last updated on June 1, 2023.

A Point of History

In the early days of the tree planting industry, workers were subject to varying systems of payment, including piece-rate, day-rate, and even cooperative systems where the sum of profits was divided amongst all parties that shared in the expenses of the work. It was also common for workers to be treated as “contractors” and have no deductions taken from their paycheques for unemployment insurance or income tax. However, a series of court decisions in the early 1980s[1] resulted in the recognition of tree planters as “workers” rather than contractors and determined that employers must treat them as such with respect to payroll systems. This established a higher level of responsibility among employers for both the payment and protection of workers. It does remain possible for tree planters to operate as contractors in limited circumstances today, but this generally requires that they be independent of typical crew models and be operating under their own direction and with the use of their own equipment. Even with recognition as employees, it was not uncommon in the early days of the modern silviculture industry for workers to be deprived of fair pay, or have unexpected conditions or deductions applied to their work. However, in the late 1990s, a group of workers and contractors came together to help establish special protections for silviculture workers, leading to the development of Section 37.9 of the Employment Standards Regulation. Section 37.9 established special requirements related to minimum wage, hours of work, and other aspects of employer-employee agreements. The people involved in bringing about these changes included the late Michael Mloszeski, a long-time tree planter who dedicated tremendous energy to seeking improvements for silviculture workers, and the industry is forever better for his efforts. There have been incremental changes to the regulation since Section 37.9 came into effect, and numerous cases of workers affirming their rights have led to a higher level of compliance across the industry. Although isolated cases of improper payment continue to occur today, there is more clarity about workers' entitlements and more accessible systems for them to pursue a grievance if they believe they are unfairly treated.

While Section 37.9 of the ESR includes many requirements, certain questions commonly arise regarding pay for silviculture workers. Many of these questions can be difficult to answer without considering the application of the ESA, section 37.9 of the ESR, and the policy interpretations used by the Ministry of Labour to apply the regulation.

Furthermore, certain sections of the ESA do not apply to silviculture workers (Sections 33, 35, 36 (1), 37, 40 and 42 (2)) as a result of the application of 37.9 of the ESR. Also, some issues can depend upon the way in which an employer has written their employment contract (or agreement) with the workers, and the variation in these agreements and in payroll systems can sometimes result in questions that cannot be answered without a decision from the Employment Standards Tribunal.

However, here is a short list of the most common questions:

Does minimum wage apply to tree planters and other silviculture workers?

Yes. Section 39.7 requires that silviculture workers receive either the total sum of their production or minimum wage (including overtime). This means that if a worker’s production results in pay less than minimum wage, the employer is required to “top them up” to meet minimum wage requirements. This “top-up” must be calculated every pay period. This means that a worker may not necessarily make minimum wage every day they work but must earn minimum wage over the course of each period based on the accumulation of hours worked (with overtime).

To properly determine how much “top-up” a worker may be entitled to, it is necessary to review the rules for calculating work hours and overtime (see next question).

How are hours of work and overtime calculated?

Hours worked in a day are calculated “portal to portal” and this generally includes all time from when workers get in the truck (or other vehicles to go to work) until they return to their camp or place of lodging. Additional hours may include time spent on tasks assigned by the employer, such as unloading trees or jobs in the camp.

While “top-up” is calculated over the course of each pay period, overtime is calculated daily and added up over the pay period. In this manner, the total number of hours worked each day (plus overtime) is added up to determine the minimum wage requirements for workers each period. Hours (or minimum wage) is calculated in the following manner:

• Minimum wage x 1.00 for the first 8 hours worked in a day

• Minimum wage x 1.50 for any time worked over 8 hours in a day

• Minimum wage x 2.00 for any time worked over 12 hours in a day

To understand how this works, consider this schedule detailed in the table below in which a tree planter works between 8 and 13 hours each day over 10 days in a 15-day pay period.

With this total of hours, the worker would be entitled to the following payment for the pay period, based on minimum wage at $17.85 per hour (based on minimum wage as of June 1, 2025)

• (78 x 17.85) = 1392.30for all hours worked at normal time.

• (27 x (17.85 x 1.5)) = 722.38 for all hours worked at overtime (time and a half or 1.5) between 8 and 12 hours in a day

• (2 x (17.85x 2)) = 71.40 for all hours worked overtime (double time or 2.0) past 12 hours in a day

• Then add all sums together: 1392.30 + 722.38 + 71.40 = 2186.08

• The grand total for minimum wage for this pay period would thus be $2186.08.[2]

So, if a worker following this schedule planted 11,500 trees over the pay period at 15 cents per tree, their production earnings would be $1,725. Their employer would thus be required to provide top-up pay of $461.08. However, if the worker planted 17,000 trees over the pay period, they would receive their production total payment of $2,550.00 (17,000 x .15 = 2,550.00).

Statutory holiday pay and vacation pay must be added to these totals (see the question regarding holiday and vacation pay).

How often am I supposed to be paid?

Silviculture workers must be paid at least twice a month, with pay periods not exceeding 16 days. Workers must also be paid IN FULL within 8 days of each pay period, including all overtime and holiday pay.

There have been cases where workers have been promised financial incentives or higher pay rates if they are willing to wait for payment at the end of the season, and in several past instances, workers have lost significant amounts of money when the employer went bankrupt or disappeared without paying them.

In short, workers should never agree to any arrangement where they are not paid according to regulation and should take prompt action if payment is not received in a timely manner. Many employers secure lines of credit to ensure they can meet payroll during the work season. While the employer assumes most of the risk if a forestry licensee defaults on payment, they also enjoy the greater benefits of profit when contracts are completed and paid.

How often should I have a day off?

Shift schedules are covered in Section 37.9 (2) of the ESR. Most employers work either 3-on / 1-off or 4-on / 1-off shift schedules. On many coastal contracts or jobs where workers commute from home, a 5-on / 2-off Monday to Friday schedule is sometimes followed.

Whichever shift schedule is chosen, workers should not work more than 5 days in a row and receive at least 2 consecutive days off each month or a total of 8 non-consecutive days within the month.

It is also possible for workers to work up to 9 or even 10 days in a row, but only in remote camps without ready access and with written approval from the majority of workers. In such cases, there are additional requirements for 2 days off after any 9-day shift and 4 days off after any 10-day shift, plus the standard total of at least 8 days off total within the month.

Given the extreme physical demands of tree planting, long shifts are generally avoided in order to permit workers time to recover and maintain optimal production.

What kind of records should I keep of my work activities?

Workers should keep accurate records of daily work activities and production. These notes can provide important evidence in the case of needing to file a claim with Employment Standards and can help verify that your production was accurately recorded each day.

Remember, employers and crew leaders occasionally make mistakes in their records, and it is appropriate to compare your notes with payroll to verify that everything was recorded accurately. Well-detailed notes should include:

• The date

• Location(s) where you worked, ideally including the block number

• The price you are quoted for each tree price or each hectare at the start of the day

• The number of trees you planted, including notes on each species, and ideally the actual seedlot codes[9].

• Names of other workers on the same worksite. This information can be valuable in the case that you require other parties to corroborate your evidence.

• The total hours you work each day including the time you left for work and the time you returned

While this may seem like a lot of information, it only takes a few minutes per day, and in the case that you do have a dispute over pay, the details of your records will be central to the success of your claim.

Can deductions be taken from my pay for overclaim of trees? What about damaged equipment?

Occasionally, the total number of trees claimed by a crew is more than the number of trees actually planted. In such cases, an employer may NOT deduct pay from any worker unless they can prove that the individual worker is responsible for the overclaim.

Of course, workers should never overclaim and such behaviour negatively impacts all parties in the workplace. Skilled crew leaders are able to quickly identify overclaim based on measuring land and conducting density plots to determine where claimed production does not match trees actually planted.

It is also not permitted for employers to deduct pay based on the quality of trees, even if a plantation fails and the company is not paid by the licensee or client. It is up to the employer to ensure that trees are planted to an acceptable standard, and workers cannot be asked to absorb losses based on tree quality or any fines associated with the planting contract.

Damaged equipment such as scrapes to trucks or broken camp equipment are part of the costs of doing business and cannot be passed on to workers (ESA Part 3 Section 21, subsection 2). An employer may take disciplinary action against employees if such damages are caused intentionally or due to failure to follow safe work procedures. However, they may not deduct money from worker pay to cover such damages.

Generally, no deductions can be made without written permission of a worker, except for federal and provincial taxes, employment insurance, and Canada pension. If the employer has WRITTEN permission, they may make deductions for camp or motel costs (see the question regarding camp and accommodation costs), as well as for payroll advances, purchases of equipment or gear, and accidental overpayment.

Do I have to be paid for replanting? What about other tasks such as unloading trees?

Replanting is the act of going back over the trees you already planted to bring them up to the level of quality or density required for the job. This activity is counted as working hours but is not generally subject to additional pay for piece-rate workers so long as earnings are meeting minimal wage. A worker may certainly decline to replant, but the employer likely has the ability to dismiss the employee for such refusals. Workers may also be asked to perform other tasks apart from the act of planting trees, including tree loading/unloading, camp tasks, dishes, pre-season training, or managing gear caches. Sometimes these tasks are subject to additional pay, particularly camp set-up and take-down, and this can vary among different employers. However, there is no clear requirement for such tasks to be subject to additional pay so long as the time spent on such tasks is counted as hours worked. Even if a worker’s pay is based on piece-rate for the number of trees they plant, this does not mean they are automatically entitled to compensation for any action that does not involve planting a tree. In fact, the regulations clearly recognize that time spent in transit from camp to the worksite must be counted as hours worked, which clearly indicates that other activities associated with planting trees are not necessarily separate from production and are subject to additional pay. This particular topic is ultimately tied to the relationship between workers and the employer. It is reasonable to expect that some tasks are part of the job, such as managing gear at your cache, putting away your own dishes, attending pre-work safety meetings, or picking up after yourself in camp. It is also reasonable to expect that the employer will compensate people for time spent on tasks that are not evenly distributed among the entire crew. For example, it is common practice to pay people for time spent in special committees or provide extra pay to workers with special duties such as first aid or driving to compensate for the time and energy devoted to these tasks. However, some tasks are more evenly shared, and the workplace may rely on a certain level of cooperation in cases such as loading a truck in the morning. If a worker feels that they should be paid extra for something, they should consider if the tasks are shared and part of general activities that make their job possible. If they feel something is unfair, they should take it up with their employer or ask other workers about it.

Can my employer hold back my “bonus” or other money if I leave before the end of a contract?

Generally no. In the past, it was not uncommon for employers to offer workers an extra cent on every tree so long as they stayed until a certain date or end of the contract. However, monies are considered wages associated with the work process, and cannot be withheld from the worker. A true bonus is something that must be freely given to the worker, such as a job well-done payment that the worker was not expecting or promised in advance. An employer may also offer other incentives based on production, such as prizes or cash awards for hitting certain goals. There is no clear and specific list of what can and cannot be offered by an employer as a bonus. However, anything that is tied to the actual work process performed each day cannot be held back, and no payment may be held back for tasks to be performed in the future as a method of exerting control over workers’ freedom.

What is a “probationary period”?

In British Columbia, an employer may end an employment agreement without notice if the worker has been employed for less than 3 months. This is often referred to as a “probationary period” during which the employer can determine if the worker is a good fit for the job and the company, including meeting quality or production standards, performing tasks adequately and safely, working effectively with others, and being reliable and on time.

However, an employer cannot dismiss a worker for discriminatory reasons or as a result of the worker asserting their rights, such as refusing unsafe work or initiating a claim for injury, and the employer can still be held liable for damages if they do not act in good faith and dismiss a worker with undue cause.

Am I entitled to paid sick leave in British Columbia?

Sometimes.

All employees in all jobs in BC are entitled to 5 days of paid sick leave per year. However, this entitlement is only available once an employee has been working for their employer for at least 90 calendar days. This must be the same employer, and days with one do not carry over to the other. The employment period generally restarts each time a worker is issued a record of employment and laid off from their job.

Most short-term employees in planting operations will finish their term of employment before 90 days are reached. However, after 90 days, a worker may take up to 5 days of leave and receive an average day of wages for each day. These wages MUST be equal to their average pay over the past 30 days (counting days worked only).

Thus, if a tree planter worked 20 of 30 days, and earned $6600 during this time, and took sick leave, they would be entitled to $330 per day (20 days worked ÷ $6600 wages = $330). Sick leave pay must also include vacation pay. An employee may be required to provide “sufficient proof” of their illness, such as a note from a medical practitioner or a pharmaceutical receipt. However, the exact type of proof ultimately must balance the privacy of the worker with the need for evidence.[i].

Also, in some cases, an illness may be considered to be work-related and subject to a compensation claim. In BC, this may include cases of COVID-19 that are deemed to have been contracted in the workplace.

Do I need to be told the piece-rate (tree price or hectare price) before I begin work?

Generally yes. The tree price or price-per-hectare or any other piece-rate is considered part of the employment agreement and must be clearly stated before work begins. The stated piece-rate cannot be decreased after the employer informs the workers but may be increased by the employer after the work is completed.

How much can my employer charge me for camp costs or motel/accommodation costs?

Camp and accommodations costs are addressed in Section 37.9(7) of the ESR. An employer can charge no more than $25 per day for camp costs (including food). GST may be added to this for a total of $26.25 per day.

An employer can charge no more than the actual cost of a motel or other accommodation where meals are not provided. Thus, if an employer was paying $80 per night for a motel or lodge cabin, with four workers in the unit, the employer could charge no more than $20 per person for the accommodation. An employer may not continue to charge a worker for accommodation or camp costs after the worker either quits or is fired, as that would be passing on operational costs to the worker and comprise a withholding of pay.

What should I do if my employer does not pay me properly?

This is one of the most important and complicated questions.

Generally, the best course of action is to first contact the employer, explain your concern, and ensure that you have assessed the issue properly and understand the company payroll system. There are multiple ways by which employers can process payroll and structure payment systems, and a worker should try to give the employer an opportunity to explain their system. However, if a worker is concerned that they are being treated unfairly and that the employer is acting dishonestly, they should take steps to protect themselves. This may include contacting other workers, comparing notes, and ensuring that multiple parties are available to corroborate their claims. If improper or lack of payment occurs, workers should act quickly and contact their nearest Employment Standards Branch immediately, as claims must be made within 6 months of a job being completed. Once a claim is initiated, workers should follow-up regularly to ensure that their claim is being acted upon. In some situations, it can be possible to freeze employer assets if they have not fulfilled their obligations to their employees. Some government contracts may withhold certain portions of payment for a set period, and not release these funds if a claim is made against the employer. If a worker wishes to file a complaint against an employer, they can contact the Employment Standards Branch by telephone via Service BC at 1-833-236-3700 or through their website at www.gov.bc.ca/EmploymentStandards Notably, the Prince George office for Employment Standards is well-versed in matters related to tree planting and usually has a properly informed staff member available to field complaints related to this sector during the busy spring and summer work season. A final note for readers is that Employment Standards are complex, and often challenging to apply to a dynamic and constantly shifting workplace like tree planting. It can be difficult for employers to maintain administrative systems that perfectly reflect every detail, second, and penny of a shift where there are interruptions in schedules and wild swings in productivity. If a worker identifies a situation where their payroll does not perfectly reflect every nuance in the Employment Standards, they should pause to ask themselves if this discrepancy is truly a problem or a matter of unfair treatment. There are even situations where discrepancies can favor workers, or where the steps required to maintain perfection in records may require steps that impose further burdens on workers and employers alike.

For example, some employers prefer to simply assign workers a set number of hours per day for payroll, regardless of the start and stop times of each day worked. Certainly, if that set number or hours is too low, workers may be unfairly deprived of benefits they deserve. However, if the number of hours is appropriate, it may be that the workers receive credit for more hours than necessary when short days and early shut-downs are considered, and that recording start and stop times for every worker every day would add layers of complexity and paperwork for all parties that may not ultimately benefit anyone. Similar considerations may arise with respect to consideration of break times and what tasks must be compensated with wages. This reinforces the need to have a civil and open-minded conversation with your employer prior to pursuing any potential grievance.

What if my payment and work conditions do not meet employment standards, but I signed a contract that agreed to a different arrangement? For example, what if I agree to work for less than minimum wage?

A worker cannot make any agreements that violate employment standards regulations or contravene their rights, and any such agreement is invalid. Employment standards and minimum wage are not subject to negotiation or alternative contracts, and employers are absolutely obligated to follow the Employment Standards Act, Regulation, and their interpretation guidelines in full. Any request to sign a contract or agree to terms that fall below employment standards should be viewed as a sign that an employer cannot be trusted, and such requests should be reported to the Employment Standards Branch of the Ministry of Labour.

Citations

[1] (Likely Reforestation Ltd. v. Canada (Minister of National Revenue) [1986] T.C.J. No. 209 (T.C.C.)), (Carter v. Canada (Minister of National Revenue) [1988] T.C.J. No. 925).

[2] These calculations are based on the June 1st 2023 increase of minimum wage to $16.75 per hour. Calculations made prior to this date would amount to lower totals.

[9] Each batch of trees (or seedlot) has a code printed on the box. This may look something like SX 557 (SX indicates a spruce tree) or Pi 1247 (Pi indicates a pine tree)

[i] Further information on this topic can be obtained from the Ministry of Labour: https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/igm/esa-part-6-section-49-1