Introduction
Applicability of Employment Standards Act to collective agreements
Critical illness or injury leaves and domestic violence leave
Recovery of wages
Other notable changes
Comment


Introduction

On 29 April 2019 the British Columbia government introduced Bill 8 – Employment Standards Amendment Act which, for the first time in more than 15 years, has introduced significant changes to the Employment Standards Act. This is the first of what is expected to be a two-part amendment process to the act.

Both substantive and administrative changes are being proposed to the act. For employers, the most significant amendments are:

  • the requirement that all of the main components of collective agreements meet or exceed the corresponding parts of the Employment Standards Act;
  • the addition of further unpaid leaves; and
  • the extension of the period for which employees can recover owed wages.

Applicability of Employment Standards Act to collective agreements

Since 2002, large parts of the Employment Standards Act have not applied to collective agreements that contained provisions dealing with:

  • hours of work or overtime;
  • statutory holidays;
  • annual leave and seniority retention recall;
  • termination; and
  • lay-offs.

This is in contrast to the situation before 2002 where the act was inapplicable to collective agreements only if their provisions met or exceeded the requirements in the corresponding part of the act when considered together (the so-called 'meet or exceed' test).

Bill 8 essentially reverts to the pre-2002 regime. The Employment Standards Act will not apply to collective agreements which have terms that meet or exceed the requirements in the corresponding parts of the act.

Bill 8 delays the implementation of this new regime until the existing collective agreement expires. More specifically, employers need not address this until their current collective agreement expires and a new collective agreement is negotiated. As such, all employers must consider what to address in their next round of collective bargaining to satisfy this new law. For employers, having the Employment Standards Act apply as a minimum floor to their collective agreement is generally viewed as interference in their collective bargaining relationship.

As with the pre-2002 era, it will be within the jurisdiction of an arbitrator pursuant to the collective agreement to decide whether the specific provisions of the collective agreement, when considered together, meet or exceed the corresponding part of the Employment Standards Act. The pre-2002 experience is unattractive to employers. A number of lengthy and expensive hearings took place in this era as all applicable provisions in a collective agreement had to be examined as a whole and then compared to the applicable corresponding part of the act. This analysis included the negotiating history of all of the relevant sections of the applicable collective agreement.

Notably, the British Columbia Law Institute's comprehensive report on the Employment Standards Act and the many recommendations for change did not propose a change in this area. While the report addresses the pros and cons of making a collective agreement subject to large parts of the act, there was such a wide divergence of opinion among the task force that no recommendations were made. As such, it is surprising to see this significant amendment contained in Bill 8, which will potentially impact all of the collective bargaining relationships in the province.

Critical illness or injury leaves and domestic violence leave

Bill 8 provides for job-protected leave for those caring for a critically ill family member. Employees will be allowed to take up to 36 weeks of unpaid leave to care for a critically ill child and up to 16 weeks of unpaid leave to care for an adult. This has been tailored to align with federal employment insurance benefits.

Domestic violence leave provides up to 10 non-consecutive days of unpaid job-protected leave. In addition, employees will have a second option that provides up to 15 weeks of consecutive unpaid leave. The 10-day leave period can be taken in individual day blocks, while the 15-week period of unpaid leave can be taken in "one unit at a time" or more than this with the employer's consent.

Recovery of wages

Bill 8 extends the period for employees to recover owed wages from six to 12 months. There is a possibility of extending that to 24 months and it appears that the circumstances will be set out in the regulations. The British Columbia labour ministry backgrounder states that the extension to 24 months would be only "in cases involving wilful or severe contravention of the Act".

Other notable changes

Child employment protections
In general, Bill 8 will raise the age that children can work from 12 to 16 years old. Exemptions are allowed for 14 and 15-year olds to perform light work that is safe for them (eg, stocking shelfs at a grocery store). According to the labour ministry backgrounder, Bill 8 also introduces provisions "to better protect the safety of 16 to 18-year-olds by putting tough restrictions on the type of hazardous work they can be asked to perform". Existing regulations that allow children to work in recorded and live entertainment with parental consent have been maintained.

Treatment of tips, gratuities and resignation
Bill 8 sets out a framework for regulating tips and tip pooling. It prohibits employers from:

  • withholding tips or gratuities;
  • deducting amounts from tips; and
  • requiring tips to be turned over to them.

While Bill 8 permits tip pooling, it specifies that employers may not share in the tip pool except where they perform the same work as some or all of the employees who share in the pool.

Under Bill 8, where an employee with at least three months' employment gives notice of resignation, if the employer wants that employee to leave earlier than the effective date of resignation, it must pay:

  • the employee the lesser of the money that the employee would have earned during the resignation notice; or
  • the amount the employer is liable to pay on termination.

Administrative changes to employment standards branch
The self-help kit introduced in 2003 as a first step for employees trying to collect owed wages has been eliminated. There will now be no need to use the self-help kit before filing a complaint. Bill 8 sets out several new provisions to toughen enforcement. The director of employment standards must be proactive in investigating complaints and addressing individual complaints. The director must also investigate all complaints "accepted for resolution by the Branch". Further, Bill 8 gives the director the authority to waive or raise penalties. The director also can require employers to inform workers of their rights. Labour Minister Bains announced a C$14 million, three-year increase in the budget specifically for funding enforcement.

Comment

The proposed administrative and enforcement provisions contained in Bill 8 are not particularly contentious, nor are the changes to the child labour provisions.

The further unpaid leaves may cause employers to have scheduling and logistical problems and could increase staffing costs.

The changes to the period for which employees can recover owed wages will expand potential liability for employers.

Bill 8's 'meet or exceed' provisions are the most significant of the proposed changes, as all unionised employers will have to carefully scrutinise their collective agreements to ensure that the key components of their next collective agreement meet or exceed the corresponding parts of the Employment Standards Act.

Finally, this is the first of two Employment Standards Act amendment acts. Bill 8 is viewed by the British Columbia government as addressing the most pressing areas for change. The next amendment act will likely target:

  • overtime hours and rates and the right to refuse overtime;
  • overtime averaging;
  • compressed working weeks and advance notice of shift schedules; and
  • possibly, the requirement for just cause termination.

It is unclear when the next amendment act will be tabled.

For further information on this topic please contact Kevin P O'Neill or Kristen Woo at Fasken by telephone (+1 604 631 3131) or email ([email protected] or [email protected]). The Fasken website can be accessed at www.fasken.com.