Landscape Gardener Exemption
• Regulation 285/01 of the Employment Standards Act, 2000 (ESA) provides that “a person employed as a landscape gardener” is not covered by certain parts of the Act:
o Portions of Part VII – hours of work (sections 17 – limit on hours of work and 19 – exceptional circumstances, paragraph 4 (2)(a));
o Part VIII – overtime pay (clause 8 (d)(i)); and
o Part X – public holiday pay (clause 9(1)(c)(i)).
• Prior to 2000, the corresponding exemption under the regulations of the former Employment Standards Act referred to “a person employed in landscape gardening”.
• The 2001 change in wording from “a person employed in landscape gardening” to “a person employed as a landscape gardener” was not intended to narrow the scope of the provision. In fact, the Ministry’s policy regarding the application of the landscape gardening exemption has remained consistent despite the change in wording.
• 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. Generally, the exemption would apply to employees engaged in:
o Landscape maintenance
o Planting or moving hedges, trees or shrubs
o Preparing the ground for planting
o Caring for established lawns
o Trimming, pruning and maintaining hedges, trees, and shrubs
o Installing rock gardens, ponds, and planters
o Park gardening
o Golf course greens-keeping
• The Program considers employees engaged in the following activities to fall outside the definition of “a person employed as a landscape gardener”:
o Persons employed by a landscaping company that do not perform landscaping work (administrative employees, landscape architects/designers, and truck drivers).
o Builders of retaining walls for purely structural purposes
o Installers of sprinkler systems
o Persons involved in weed spraying of roads and industrial sites.
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.
For example:
• John spends 75% of his work week caring for established lawns while the other 25% of his time is spent installing sprinkler systems. The overtime exemption would apply to John because he spent more than 50% of his time in that work week doing “landscape gardener” work.
•During a work week in which a public holiday falls, John spends 75% of his time caring for established lawns while the other 25% of his time is spent installing sprinkler systems. The public holiday pay exemption would apply to John because he spent more than 50% of his time in that work week doing “landscape gardener” work.
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.
