Defining Landscape Gardener

Landscape Gardener Exemption

Following a meeting with officials from Landscape Ontario and the Ministry of Labour, regarding the interpretation of certain exemptions within the Employment Standards Act, 2000, a fact sheet was developed by the Employment Standards Program to provide clarity to LO members on how exemptions are interpreted for the purpose of determining compliance.

The document will serve as the basis of the ministry’s operational policy and be shared with field staff to ensure consistency in the interpretation and enforcement of the legislation.
Some of the highlights include a brief history of the act, what defines and does not define a landscape gardener, as well as issues of overtime and holidays.

The definition of the exemption follows.

Excerpt from Employment Standards Act, 2000 Policy and Interpretation Manual (2015 – Release 1, February 2015) published by Carswell Chapter 31.5.1 …

The Program's view is that a person employed as a landscape gardener is engaged in work that directly involves the modification or maintenance of land for a purpose that is substantially aesthetic (as contrasted with utilitarian). Generally, the exemption will apply to employees engaged in:
 
  • Landscape maintenance (e.g. raking, watering, weeding)
  • Planting or moving plants including hedges, trees or shrubs
  • Preparing the ground for planting
  • Caring for established lawns
  • Trimming, pruning and maintaining plants including hedges, trees, and shrubs
  • Installing rock gardens, ponds, and planters
  • Park gardening
  • Golf course greens-keeping
  • Installation and maintenance of irrigation systems (including both drip lines and sprinklers) where the irrigation system contributes to sustaining and maintaining plants (including sod, trees, shrubs and flowers). [Previously, the Program’s position was that these activities were not subject to the exemption. However, the position changed in light of the Ontario Labour Relations Board’s decision in AWS Irrigation Management Inc.*]

The Program considers employees engaged in the following activities to fall outside the definition of “a person employed as a landscape gardener”:
  • Persons employed by a landscaping company who do not perform landscaping work (e.g. administrative employees, landscape architects/designers, and truck drivers).
  • Builders of retaining walls for purely, or substantially, structural purposes
  • Installers of lighting systems
  • Persons involved in weed spraying of roads and industrial sites (See Re Andrews Agrichemicals, 1992 CarswellOnt 1143, E.S.C. 3049.)

Majoritarian Test

Employees in many landscaping businesses multi-task; performing a variety of duties, some of which fall within the exemption for “a person employed as a landscape gardener” and some that do not.

For the purposes of determining whether the exemption to overtime applies, s. 22(9) of the Act provides that an employee who performs work subject to the 44 hour overtime threshold as well as work exempt from the overtime provisions will be entitled to overtime after working 44 hours in a week, unless the employee spends the majority of his or her time in that week engaged in activities that are exempt from overtime.

With respect to the exemption from public holiday entitlements, s. 25(2) of the Act provides that unless the majority of time spent in any week in which a public holiday falls is work that is exempt under the regulations, the public holiday provisions will apply. Consequently, the exemption from the public holiday provisions in the Act will apply only if an employee spends the majority of his or her time engaged in work that is exempt from the public holidays in any week in which a public holiday falls.

Unlike the Overtime and Public Holiday provisions of the Act, the ESA does not specify the period of time to be considered when determining whether the Hours of Work provisions (daily, weekly maximums) apply to employees who do both landscape gardening work and “non” landscape gardening work. Officers will therefore consider whether the core or essential nature of the employee’s work is landscape gardening. This may involve application of the majoritarian test; however the period under consideration would generally be considered to be the full period of employment with the employer, provided there has not been a permanent change in the core or essential nature of the employee’s job. For example, if an employee has been engaged in a mix of landscape gardening and “non” landscape gardening activities over the five year course of his or her employment, consideration would be given to where the employee spent the majority of his or her time over those five years.

As indicated above, the Program recognizes that the core or essential nature of an employee’s job may change. In such cases, work performed prior to a permanent change in the nature of the employee’s job will not be relevant when making a determination as to whether the employee is currently “a person employed as a landscape gardener” or not. For example, if an employee spent five years employed in the office of a landscaping company performing administrative duties and subsequently accepted a permanent position with that company planting trees and hedges in residential gardens, he or she would be considered to be “a person employed as a landscape gardener” immediately upon commencing his or her new position because there was a permanent change to the core nature of his or her job. As a result, the hours of work exemptions would apply immediately.

More information may be found at:
http://www.labour.gov.on.ca/english/es/pubs/factsheets/fs_agri.php
http://www.labour.gov.on.ca/english/es/tools/srt/coverage_household_landscape.php