Canada: British Columbia Proposes Significant Changes To Employment Standards Act

The Government of British Columbia announced significant planned revisions to the Employment Standards Act on April 29, 2019.

Bill 8, the Employment Standards Amendment Act, 2019 (“Bill 8”) was introduced on April 29, 2019 and is on its first reading in the Legislative Assembly of British Columbia. If passed in its current form, there will be substantial changes to the Employment Standards Act  (the “ESA”). The Government has stated that the proposed changes were designed to, among other things, protect children and service workers on the job, make it easier for employees to file complaints with the Employment Standards Branch, and provide additional job protected leaves. Bill 8 would also implement several other major administrative and substantive amendments to the ESA. The following are highlights of Bill 8 which, if passed into law, will be of great interest to employers and employees in British Columbia:

Application of the ESA to Collective Agreements

Previously, certain provisions of the ESA did not apply to collective bargained agreements between unions and employers, provided that such agreements contained any terms and conditions pertaining to hours of work and overtime, annual vacation and vacation pay, statutory holidays, recall, termination of employment and layoff.

The proposed amendments will require such provisions to now either meet or exceed the ESA requirements. If Bill 8 becomes law, employers will have to evaluate the terms of their collective agreements to ensure that they now meet or exceed the minimum requirements imposed by the ESA.

This is a significant change, which will impact many collective bargaining relationships in the province. The implementation of this change will be subject to a transition period and will not apply to current collective agreements but will apply once they expire.  This will give employers some time to prepare and consider what changes will be required. Employers who are set to begin bargaining or are in the process of bargaining after Bill 8 comes into force should closely monitor the implementation date.

Enforcement Powers

Generally, the ESA limits the time period in which an employee may recover wages to 6 months from the date a complaint is made, or the employee’s employment is terminated.  Bill 8 extends this period to 12 months.

Also, Bill 8 will eliminate the requirement that employees make use of the Employment Standards Branch’s “self-help kit” before filing a complaint. Previously, employees were required (in most cases) to present the self-help kit to their employers to attempt to resolve their disputes prior to being able to proceed with their complaint.

Additionally, Bill 8 will require the Director of the Employment Standards Branch (the “Director”) to investigate all accepted complaints. 

The ESA regime regarding monetary penalties arising after a determination by the Director will also be revised. These changes empower the Director to waive or increase penalties for breaches of the ESA.  It is anticipated that the discretion to waive penalties would be exercised if an employer has made good faith efforts to comply with the ESA.

Director and Officer Liability

Bill 8 will narrow the exception to liability for directors and officers of a corporation subject to actions taken by a bank to collect on its security pursuant to the Bank Act or insolvency proceedings.  In such circumstances, the exception to director and officer liability will only apply to termination pay pursuant to the ESA, instead of to all “wages” as that term is defined in the ESA.

New Job Protected Leaves

Bill 8 introduces a new critical illness or injury leave and a domestic violence leave.

Upon providing a certificate from a medical practitioner or nurse practitioner, employees will be eligible for up to 36 weeks of unpaid leave to provide care or support for a family member under 19 years of age and up to 16 weeks for family members 19 years old or older. Such leave may be extended if the life of the family member remains at risk.

The unpaid domestic violence leave provides victims of domestic violence with up to 10 non-consecutive days of unpaid job protected leave, as well as another option that could provide an additional 15 weeks of consecutive unpaid leave. 

Other Notable Changes

Other notable proposed changes include:

• Gratuities: Employers will be prohibited from deducting or withholding gratuities except to collect and redistribute the gratuities amongst employees.
• Resignation: If an employee has provided notice of resignation and the employer dismisses the employee without cause during the resignation notice period, the employer is required to pay the employee an amount equal to the lesser of: (i) the balance of the resignation notice period; or (ii) the amount the employer would be required to pay on had it terminated the employee.
• Dealing with unlicensed agencies: In the event that an employer contracts with an unlicensed employment agency, the employer will be deemed to be the employer of each employee who performs work on their behalf.
• Informing Employees of their Rights: Employers will be required to make available or provide each employee with information about the rights afforded to them pursuant to the ESA, though the content and form of this information has yet to be determined.
• Child Employment Protections: The age at which a child may work will be raised from 12 to 16, subject to certain exemptions for 14 and 15 year old’s who may perform “light work”. The definition of “light work” has yet to be determined.
• Expanded Record Keeping Requirements: Payroll records will need to be retained for 4 years after the date on which they were created, rather than 2 years after the employee’s employment terminates. Similarly, averaging agreements will need to be retained for 4 years from their expiry.

Final Thoughts

Bill 8 represents a significant, and largely employee-favourable, revision to the ESA. While further revisions are possible, they are not expected. We will keep you apprised as Bill 8 progresses.  In the meantime, employers should carefully consider the proposed changes and consider their impact on their businesses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.