Law360 Canada (September 15, 2026, 1:34 PM EDT) --

Joel Fairbrother

All employees in Alberta have rights under the Employment Standards Code, Occupational Health and Safety Act, Workers Compensation Act and Human Rights Act, right?

Most employees have robust rights, yes.

However, farm workers often slip through the cracks because the employment standards legislation has broad rights exceptions for farm workers.

The purpose of this article is to shed some light on the significant gaps in employment standards protections afforded to farm workers and to suggest that some adjustment is necessary and desirable.

The Employment Standards Code

The Alberta Employment Standards Code, RSA 2000 c. E-9 (ESC) provides basic employment standards rights to most Alberta employees. This includes rights related to wages, hours of work, periods of rest, overtime, vacation pay, holiday pay, leaves of absence and more.

The key section of the ESC relevant to farm workers rights is Section 2.1.

Section 2.1(2) makes clear that the ESC does not apply to workers on family farms with fewer than five workers.

Section 2.1(1) makes clear that the farm workers with some protection are still not given the same protection as ordinary employees as it pertains to hours of work, rest periods and overtime pay. There are special rules for eligible farm workers.

Farming and ranching operations are defined broadly in Section 2.1(4) to include primary production of eggs, milk, grain, seeds, fruit, vegetables, mushrooms, sod, trees, shrubs, plants, honey, livestock, poultry or bees.

Section 1.1(1) of the ESC Regulations, Alta. Reg. 14/1997 clarifies further that cannabis producers are not “farming or ranching operations,” but fisheries producing cultured fish are.

So to put it really short, if you are a person doing almost any kind of farming, the normal ESC rules protecting most other employees do not apply to you.

So what are the ESC rules for farm employees?

The ESC Regulations enumerates the special rights of farm employees excluded from the ESC. These are as follows:

• Farm employees at small farms (five or fewer long-term employees), including family members, volunteers and other workers, are not covered by the ESC rights at all;
• Farm employers for farms of five-plus employees must allow four days of rest in every 28 consecutive workdays. Normal employees must receive at least four consecutive days of rest in each period of four consecutive workweeks;
• Farm employees for farms of five-plus employees are not entitled to overtime, period. Ordinary employees are entitled to overtime for all hours exceeding eight in a day or 44 in a week;
• Farm employees for farms of five-plus employees do receive compensation for general holidays. Their holiday pay is calculated less favourably than for ordinary employees, but their rights are similar. They receive compensation for general holidays whether they work them or not, and additional money or time in lieu when they do work them;
• Farm employees for farms of five-plus employees are entitled to minimum wage under s. 9 of the ESC Regs (i.e., because this section isn’t excluded), which is currently $15 per hour;
• Farm employees for farms of five-plus employees are entitled to vacation pay, statutorily protected job leaves and termination pay (i.e., because these sections not excluded).

One further wrinkle is that when calculating if a farm has fewer than five employees, family members on a family farm do not count towards the five, nor do any workers employed on a farm for fewer than six consecutive months.

Ordinary non-farm employees have protections related to maximum hours of work (usually 12 hours), mandatory rest periods (usually 30 minutes for over a five-hour shift, and more for longer shifts) and overtime (usually required for hours exceeding 8/44 formula), and some special rights for employees under 12 years old (Regs Part 5). A summary of most key rules can be found here.

From an ESC standpoint, it would theoretically be legal for even a large farm to have their workers putting in 12-hour-plus shifts for 24 consecutive days, paying minimum wage with no overtime, so long as they give four full days off at the end — even if the person is under 16 years old. Further, the calculation formula for employee count strongly favours a finding that the farm is a small farm, and even a substantial number of seasonal workers would often not cause a finding that it’s a large farm with applicable ESC protections.

To state the obvious, there is a massive disparity in the ESC rights of farm workers and almost all other workers in Alberta.

The Alberta Labour Relations Code

The Alberta Labour Relations Code, RSA 2000, c. L-1 (ALRC) applies generally to provide employment standards rights to unionized employees in Alberta. Section 1(1)(l) of the ALRC is clear that a person employed in a farming or ranching operation is not an “employee” under that legislation. This means they are effectively not covered by its protections.

The Occupational Health and Safety Act and Code

Ordinary employees are entitled to robust protection under Alberta’s Occupational Health and Safety Act, SA 2020, c. 0-2.2 (OHS) and Code, Reg 191/2021. These include at the most basic level:

• Employers are required to promote the highest degree of physical, psychological and social well-being of workers;
• Employers must prevent work site incidents, injuries, illnesses and diseases;
• Employers must protect workers from factors and conditions adverse to health and safety;
• Employers must ensure all workers have the right to be informed about risks, meaningful participation in risk mitigation, right to refuse unsafe work, and right to be free from discipline for exercising OHS rights;
• Employers must ensure workers are supervised by competent personnel and must ensure workers are trained to perform work safely;
• Employers have many specific obligations related to hazard assessment and elimination, chemical and biological substances, confined spaces, cranes and hoisting, emergency preparedness, fall protection, fire and explosion hazards, and many others.

Alberta OHS protections do not generally apply to farm workers if they are part of the owners’ immediate family, because the Act and Code do not consider this an “occupation” or these people to be “workers,” meaning they do not have “employers” covered by the Act or Code. That said, the owner of the land does have obligations to ensure that the land and buildings are safe, “as far as it is reasonably practicable to do so,” and there are some general safety rules that any “person” must follow, which would presumably include farm workers and their employers.

The OHS Farming and Ranching Exemption Regulation defines farming and ranching operations more narrowly than the ESC, excluding food processing, greenhouses, mushroom farms, nurseries and sod farms from the definition. As a result, more categories of farm workers would have OHS protection than would have ESC protection.

OHS has some additional protections for farm workers where the operation employs at least one non-family member, but in that event, these protections only apply to those non-family members. Only Part 13 of the Code, pertaining to having Joint Health and Safety Committees, applies to non-family farm workers in the same way it would apply to workers generally. So, while farm workers do have significantly fewer OHS rights than ordinary employees on specific safety protections, non-family farm employees are entitled to participate in health and safety discussion with their employers.

Finally, farm workers presumably receive some health and safety benefit from general construction, operating and permitting requirements of various types of farming operations under the Agricultural Operation Practices Act. However, this legislation does not contain many specific rules directly pertaining to the health and safety of the workers.

The Worker’s Compensation Benefits (WCB) legislation

In almost every Alberta employment law context involving manual labour, employers must have WCB coverage in place for their employees.

Small farms are not required to enrol their workers in WCB. Larger farms are required to have WCB or alternative private insurance.

As a result of these exclusions, if a farm worker at a small farm is injured, they will only have WCB coverage if the farm has voluntarily enrolled in the program. For larger farms opting for private insurance coverage, the farm worker would need to file a claim through that insurance scheme and would not be able to make a WCB claim.

Human rights

Farm workers have human rights in Alberta. The Alberta Human Rights Act, RSA 2000, c. A-25.5 (AHRA) grants freedom from discrimination in employment to all employees.

I’ll immediately qualify this by observing that it’s very rare for a farm worker to make a complaint. I can only guess at the reasons for that. I am only aware of one decision in Alberta involving discrimination of a farm hand, which was RSA 2000, c. A-25.5.

I’ll also point out one potentially troublesome loophole to human rights protection for farm workers I am aware of, which I’ll call the “site ban loophole.” If the owner of the land being farmed is not the worker’s “employer” and they issue a “site ban” preventing that worker from coming to work, there is likely very little the employee can do about it. This is so even if the action would otherwise be considered discriminatory. This is because the AHRA only protects employees from discriminatory actions of their employers.

Here is an illustrative scenario of how the site ban loophole could operate on a farm. Imagine a farm worker at a farm plot leased by their true employer. Assume for this scenario that the true owner retains the right under this lease to exclude activity on the land for any person it wishes. The true owner finds illicit drugs in a locker somewhere on their land. The owner bans the employee from further entrance to the land without regard to questions an employer would be obligated to ask in this situation, such as whether the employee has an addiction. Addictions are protected human rights grounds. With the ban in place, the employee can clearly no longer perform their job function. The employer has no other place for them to work, so they stop paying them. In this scenario, the employee cannot sue the owner for discrimination because they are not the person’s employer. They also probably cannot sue the true employer because that party has not committed an act of discrimination.

I am not aware of the site ban loophole being used by a farming operation, but it has been used in cases involving construction and oilfield sites where their employer is not the owner of the site or land. Two examples of this happening are Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission), 2011 ABCA 3, and Reid v. North West Redwater Partnership, 2021 AHRC 159. There are several others.

Other Canadian jurisdictions have less restrictive wording in their human rights legislation, which operates to prevent the site ban loophole. The best is example is B.C.’s human rights legislation, which has been interpreted by the Supreme Court of Canada as preventing discrimination of employees at work even where the discriminating party is not their employer (British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62. The B.C. legislation prevents discrimination of an employee by any “person,” whereas the Alberta legislation only prevents discrimination of an employee by any “employer.”

Concluding comments and plea for enhanced farm worker rights

The rights of farm workers are severely limited under Alberta’s employment standards legislation, especially on small farms. Even large farm workers have very different rights than those of non-farm employees.

This situation has a long history. It’s clear the industry wants more flexible (or non-existent) rules for farm workers. If in doubt, consider reading about the historical legislation changes in this area, including the addition of numerous rights at one point and then subsequent removal of them.

Whatever the political weeds might be, the current basket of rights for these workers is far from full. It would surely be an exaggeration to say that farm workers are modern-day serfs. I would respectfully suggest, however, that it’s also not a ridiculous comparator.

There is surely an acceptable middle ground between their current rights and those of ordinary employees that reasonable people can agree on. No one should be expected to work without basic employment standards and safety protections.

Joel Fairbrother is an employment lawyer and partner at Bow River Law LLP.

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