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Reading the Tea Leaves: Some Early Indicators of Potential Changes to Workplace Law in British Columbia

August 2017
Legal update by: Mike HamataBrandon Hillis

Last week, Premier John Horgan distributed mandate letters to his 22-member cabinet.

Each letter makes references to the new government’s “three key commitments to British Columbians” (making life more affordable, delivering the services that people count on and building a strong, sustainable and innovative economy that works for everyone), the Confidence and Supply Agreement with Andrew Weaver’s Green Party Caucus and a commitment to reconciliation with British Columbia First Nations.

Each letter also sets out the specific priorities for each ministry. For example, Finance Minister Carole James has been mandated to eliminate tolls on the Golden Ears and Port Mann bridges, and Minister of Mental Health and Addictions Judy Darcy has been directed to develop an immediate response to the opioid crisis that has gripped much of British Columbia in the past year-and-a-half.

From a workplace law perspective, the most interesting mandate letters are those given to Minister of Labour Harry Bains and Attorney General David Eby, which provide some valuable (albeit early) indicators of some of the changes that may come to British Columbia:

Minimum Wage

Significant increases to the minimum wage are coming. One of the tasks set out for Minister Bains is to establish a commission to support the work of implementing a minimum wage of $15/hour by 2021.  Minister Bains’ mandate letter makes it clear that the province will be moving to a $15/hour minimum wage in the next four years, and that the only question that remains is how it is going to get there.

A $15/hour minimum wage will represent a close to 33% increase over the current minimum wage, and will move the province from having one of the lowest minimum wages in the country to having one of the highest.[1]

Temporary Foreign Workers

Not to be confused with the Long Gun Registry, Minister Bains has been directed to create a Temporary Foreign Worker Registry to “…help protect vulnerable workers from exploitation and to track the use of temporary workers in our economy.”

On October 6, 2016, Mr. Horgan (as he then was) identified the Temporary Foreign Worker Program (“TFWP”) as a cause of unemployment in the construction industry:

We’re hearing that the temporary foreign worker program is taking jobs away from British Columbians in the construction industry, but the full impact on people is unknown… The Christy Clark government needs to start tracking temporary workers so we can see how many jobs and apprenticeship opportunities for young British Columbians are being lost.

The election platform casts the issue in a different light, and instead focuses on preventing abuses of temporary foreign workers, providing a path for foreign workers to “remain in BC”, and improving recognition of foreign credentials. The platform also includes a commitment to end the practice of charging recruitment fees.

Ottawa is responsible for the TFWP, but provinces are largely responsible for its enforcement. B.C.’s proposed Registry is modelled after a similar registry in Manitoba. A B.C. registry could allow the provincial government to more actively monitor compliance with the requirements of the TFWP. In 2014, the Globe and Mail reported that in that in the first fiveyears of its registry, Manitoba investigated more than 600 registered employers who hired temporary foreign workers and found that nearly half were non-compliant.

Employment Standards

Minister Bains’ letter tasks him with updating employment standards to reflect the “changing nature of workplaces and ensure that they are applied evenly and enforced.”

Given the vagaries of that statement, determining what Minister Bains’ next steps may be requires a fair amount of guesswork. However, the reference to the “changing nature of workplaces” suggests that amendments to the ESA could be aimed at reflecting the increased amount of part-time, on-call and casual or seasonal employment in the province, as well as the fact that increasing numbers of workers are able to work remotely.

Such changes could include changes to the work scheduling provisions of the ESA along the lines of those proposed in Ontario, which would see employees get paid for being “on-call” and not called into work, and which may provide employees with the right to refuse to accept shifts without repercussion if their employer asks them to work with less than four days’ notice.  It is also possible that changes could be made to the legislation to allow employers and employees to put together flexible working schedules, whether by (hopefully) amending the averaging agreement provisions of the ESA to allow for more flexibility (and less red tape) or by expressly allowing for work-from-home or remote work arrangements.  Changes could also include the implementation of equal-pay-for-equal-work provisions to ensure that casual, part-time, temporary and seasonal employees are paid equally to full-time employees when performing the same job for the same employer, as has been proposed in Ontario.

The reference to ensuring that employment standards “are applied evenly and enforced” suggests that the Ministry could be hiring compliance officers with the mandate to proactively ensure that employers in B.C. are complying with the requirements of the ESA.  For years, the Employment Standards Branch’s processes have been largely complaint driven: employers are only held to account when a complaint is filed.  The hiring of compliance officers could provide the Branch with the power to conduct audits of workplaces to ensure that employers are complying with the legislation, a move which – particularly if combined with increased penalties for non-compliance – would provide employers with a powerful incentive to ensure that they are, in all respects and at all times, compliant with the ESA.

Workers’ Compensation

Minister Bains’ letter also makes reference to increasing compliance with “laws and standards put in place to protect the lives and safety of workers.” Similar to the changes anticipated at the Employment Standards Branch, this language suggests that WorkSafeBC may soon be hiring additional compliance officers, and tasking them with taking the initiative to make sure that employers are compliant with the provisions of the Workers’ Compensation Act.

Labour Code

Minister Bains’ letter broadly references reviewing the Labour Relations Code to ensure that workplaces support a strong, sustainable economy with fair laws for workers and businesses.  Such a statement is certainly the vaguest of the commitments set out in the mandate letter for the new Minister of Labour.

Given their broad support for the elimination of the secret ballot in certification applications, a review of the Labour Relations Code could lead to an attempt to revert to the card-check system, which enables unions to become certified without a vote, so long as they sign up a sufficient number of employees in the proposed bargaining unit.  As noted in the Vancouver Sun on June 16, 2017, during a conference with members of the B.C. Government and Services Employees’ Union:

… Horgan said he prefers a system called card check, in which a union is certified if a majority of members sign union cards.

“I believe that the right to join a union is a fundamental right in Canada and I believe card check is an appropriate way for that happen,” he told the board.

However, whether such efforts would ultimately be successful is questionable, given the lack of support for such a system expressed by Green Party Leader Andrew Weaver.

Workplace Human Rights

There’s no ambiguity in the direction to Minister Eby to “re-establish the Human Rights Commission.”

Presently, B.C. has a Human Rights Tribunal that adjudicates complaints under the B.C. Human Rights Code. Complainants, with the help of counsel (but frequently on their own), can initiate a complaint which proceeds directly to the Tribunal. The current system is complaint driven – the Tribunal does not have a mandate to investigate human rights violations in the absence of a complaint.

British Columbia had a Human Rights Commission between 1973 and 1984, when it was disbanded. The Commission had a second run, which ended in 2002. We expect the new B.C. Human Rights Commission will have broader investigatory powers than the Tribunal, and may take a more active role in searching out violations of the Human Rights Code. Commentators have identified temporary foreign workers as a potential focus of the reincarnated Commission’s attention.

In short, change is coming to the laws that regulate workplaces in British Columbia. While the ultimate nature and impact of some of these changes is not yet entirely clear, employers are advised to keep abreast of these developments, and to take steps to ensure that as legislation changes, their workplaces remain compliant.

[1] In Alberta and Ontario, efforts are underway to increase respective minimum wages to $15/hour.

The Lawyer’s Daily – B.C. Court Restores Human Rights Tribunal Decision in Dismissal of City Worker

June 2017
Legal update by: Gabrielle Scorer

Gabrielle Scorer comments on the British Columbia Court of Appeal’s decision to restore the British Columbia Human Rights Tribunal’s decision re: Francescutti v. Vancouver (City).

Read complete article here.

 

 

Ten Roper Greyell Lawyers Ranked in 2017 Canadian Legal Lexpert Directory

May 2017

We are pleased to announce that ten of the firm’s lawyers were recognized by Lexpert as leading employment and labour law practitioners in the 2017 Canadian Legal Lexpert Directory.

Join us in congratulating the following Roper Greyell lawyers:

*Lawyer listed for the first time in The Canadian Legal Lexpert Directory

For the complete directory, click here

About the Canadian Legal Lexpert Directory

Published since 1997, the annual Canadian Legal Lexpert Directory profiles leading practitioners across Canada in over 60 practice areas and leading law firms in over 40 practice areas.

 

Employer Obligations on General Voting Day: 2017 Provincial General Election

April 2017

A Provincial General Election is scheduled to take place in British Columbia on Tuesday, May 9, 2017.

The B.C. Election Act imposes certain obligations on employers to ensure that their employees have sufficient time free from work to exercise their right to vote.

We are publishing this bulletin to help employers understand the scope of their obligations on General Voting Day.

Who can vote in the Provincial General Election?

All Canadian citizens who are at least 18 years old on General Voting Day and have lived in B.C. for six months before election day are eligible to vote in the Provincial General Election.

When are polling stations open on General Voting Day?

Polling stations are open from 8:00 a.m. to 8:00 p.m. PT.

Time off for Voting

Section 74 of the Election Act outlines an employer’s obligations to provide time off for voting. Of particular significance, employers must provide their employees:

  • Four consecutive hours off work. Employees eligible to vote are entitled to four consecutive hours free from work during voting hours on General Voting Day – i.e. between 8:00 a.m. and 8:00 p.m. PT.
  • Without loss of pay or penalty. An employer may not make any deduction from an employee’s pay or impose any other penalty because he or she took time off to vote. Employees are entitled to their regular compensation for hours not worked because of voting.
  • At a time scheduled by the employer. While an employer must provide its employees with time off work, the employer can choose in its discretion when to provide the four consecutive hours for voting.

Example:

Sam and Toby both work on General Voting Day. Polling stations are open from 8:00 a.m. to 8:00 p.m. PT

Sam works from 9:30 a.m. to 5:30 p.m. The employer must let Sam do one of the following:

  • Start late – 12:00 p.m. or later
  • Leave early – 4:00 p.m. or earlier
  • Take four consecutive hours off work during his scheduled hours

Irrespective of when Sam takes time off for voting, he is entitled to his regular compensation for his full shift

Toby works from 8:00 a.m. to 4:00 p.m. Toby is not entitled to any time off work because he has four consecutive hours free from work for voting – 4:00 to 8:00 p.m.

Employers Operating in a Unionized Environment

Any employer operating in a unionized environment is advised to review all provisions of the applicable collective agreement which speak to obligations on General Voting Day. The employer may have obligations over and above the statutory obligations set out in the Election Act.

Employees Working in a Remote Location

The right to have four consecutive hours off work on General Voting Day without any loss of pay or penalty is not a right available to all employees. An employee who is in a remote location by reason of employment such that he or she would be unable to reasonably reach any voting place during voting hours is not entitled to time off for voting.

Penalties for Non-Compliance

The consequences for an employer of failing to grant time off work for voting can be significant. Failure to comply with section 74 of the Election Act is an offence and, on conviction, the employer may be liable to one or both of the following: a fine of up to $10,000 or imprisonment for a term not longer than one year.

Advance Voting

Any employer anticipating a disruption to its business on General Voting Day can encourage its employees to vote in advance voting. This will be available throughout B.C. from 8:00 a.m. to 8:00 p.m. (local time) on April 29 and 30 and May 3, 4, 5 and 6, 2017. The employer cannot compel its employees to vote on those voting days.

If you have any question at all about how the Provincial General Election may affect you or your workplace, please contact Tamara or James or any other lawyer at Roper Greyell LLP.

Federal Government Tables Legislation to Legalize Recreational Marijuana

April 2017

The federal government tabled legislation today, April 13, 2017, that would legalize the use of marijuana for recreational purposes by July 1, 2018.

Under the new legislative regime, the federal government will license marijuana producers, while the provinces and territories will have jurisdiction over the distribution and sale of marijuana within the framework set out in the federal legislation.

Highlights of the proposed legislation are as follows:

  • Purchasers will be required to be at least 18 years old, although provinces and territories may set a higher minimum age.
  • Adults 18 and older will be able to possess up to 30 grams of dried cannabis, or its equivalent in non-dried form, and will be able to grow up to four plants per residence.
  • Possession, production, and distribution outside of the legalized system would remain illegal, as would imports or exports without a federal permit.

As part of this major legislative initiative, the federal government is also proposing a number of changes to the Criminal Code, including creating a new criminal offence with a maximum of 14 years in jail for selling marijuana to a minor.

The proposed legislation also includes significant changes to Canada’s impaired driving laws. Proposed amendments to the Criminal Code would reportedly make it illegal for a person to drive within two hours of having a prescribed level of marijuana in his or her blood stream. The government is promising a system of mandatory roadside testing to test for cannabis impairment. The government is also proposing a new drug-impaired driving offence for drivers who combine alcohol with cannabis.

Potential Implications for Employers

In advance of the proposed legalization of marijuana, employers should consider updating their drug and alcohol policies. In particular, the proposed amendments to the Criminal Code may provide employers with an evidence-based model for managing suspected impairment in the workplace.

We will be carefully following the proposed legislation as it passes its way through the House of Commons and Senate.

If you require assistance regarding the impact of these proposed legislative changes on your workplace or any workplace policies or benefit plans, please contact us.

Roper Greyell Welcomes Maggie Campbell and Mike Hamata

April 2017

We are pleased to welcome Maggie Campbell and Mike Hamata to the firm.

For the past ten years, Maggie has advised clients on all aspects of employment relations. She has represented clients before the British Columbia courts, the Human Rights Tribunal and the Employment Standards Tribunal. Before joining Roper Greyell, Maggie practiced employment and labour law at the Vancouver office of an international firm.

Mike received his Juris Doctor from the University of Toronto and was called to the British Columbia bar in 2012. Prior to starting his legal career, Mike was a judicial law clerk to the Supreme Court of British Columbia. Mike articled and practiced as an employment and labour associate at an international law firm in Vancouver before joining Roper Greyell.

“We are very excited to welcome Maggie and Mike to Roper Greyell. They bring top-tier experience that will benefit our clients and contribute to the strength of our firm,” said Tom Roper, Roper Greyell’s Chair.

Federal Government to Make EI Parental Benefits More Flexible for Parents

April 2017

How Will This Affect Employers?

The Federal government is expected to introduce extended parental leave as early as 2018. Budget 2017 proposes changes to the Employment Insurance (“EI”) scheme that will allow parents to “stretch” EI parental benefits over an extended period of up to 18 months at a lower benefit rate of 33% of average weekly earnings. EI parental benefits will continue to be available at the existing benefit rate of 55% over a period of up to 12 months.

While the total benefit amount available through EI will not change, the lower extended parental benefit rate may have an impact on employers who offer supplemental or top-up payments during parental leave. We recommend that employers start to review their policies and collective agreements to determine whether changes will be required and how they may allocate top-up payments over 18 months if required to do so. Changes to these plans will require enough lead time to give notice to employees and/or negotiate the terms of any collective agreement with unions.

Budget 2017 also proposes to allow mothers to claim EI maternity benefits up to 12 weeks before their due date, an increase from the current standard of eight weeks.

It is important to note that none of the proposed measures will take effect immediately, but must await the introduction and passage of legislation. To implement these measures, Budget 2017 proposes to amend the Employment Insurance Act.

Further, while the proposed changes to the Employment Insurance Act will extend benefit entitlement and allow mothers to begin their EI maternity benefit earlier, the changes will not necessarily alter the legislated length of pregnancy/parental leave for all employees.

The budget indicates that the federal government will make the necessary amendments to the Canada Labour Code to ensure that employees in the federally-regulated sector have job protection while they are receiving caregiving, parental or maternity leave benefits. For provincially regulated employees, the job protection and leave entitlements will remain the same (i.e. usually based on a standard 12 month leave) unless the provincial legislatures also change the applicable provincial employment standards legislation. There is precedent for the provinces to follow the Federal Government’s lead when EI changes are made, but it remains to be seen what each province will do in these circumstances.

We will continue to watch for these legislative changes as each jurisdiction takes or does not take steps towards these amendments. If you require assistance regarding the impact of these proposed legislative changes on your workplace or any workplace policies or benefit plans, please contact us.

Click here for more details

Roper Greyell is Ranked in the 2017 Edition of Chambers Global

March 2017

We are pleased to announce that Roper Greyell has once again been ranked as a leading employment and labour law firm in the 2017 edition of Chambers Global. Thomas A. Roper, Q.C., Delayne Sartison, Q.C. and Gregory Heywood were also ranked individually.

Meet our lawyers who have been recognized as leaders in employment and labour law:

Thomas A. Roper, Q.C.’s “reputation in Vancouver and beyond is of the highest standing. He is highly thought of for his far-reaching experience in employment and labour law.” One source commented: “He is very efficient and very sound in his approach – a leading lawyer.”

Delayne Sartison, Q.C. “inspires confidence in peers and clients alike, who pinpoint her as “a clear leader” in British Columbia. Commentators appreciate her expertise in matters relating to the Canadian Charter of Rights and Freedoms, her strong management of arbitration files, as well as her generally thoughtful and practical attitude.”

Gregory Heywood “earns praise for his skills in litigation and arbitration, and for his flexible approach. Sources describe him as “top-notch,” and say: “He understands the industrial relations climate in BC.” He has significant experience representing natural resources and forestry industry clients.”

All quotes are from Chambers Global 2017.

About Chambers Global

Chambers Global is a well-respected legal publication that ranks the world’s best lawyers and law firms. Rankings are based on in-depth research and interviews conducted by over 150 highly qualified researchers.

Marijuana Legalization and the Workplace

March 2017

Julie Menten discusses employer safety concerns and legalized marijuana in the workplace.

Read more here.

Roper Greyell Appoints Linda Lucas as Chief Executive Officer

March 2017

Roper Greyell is one of the first law firms in Canada to create the position of Chief Executive Officer and we are pleased to announce that Linda Lucas has been appointed to that role.

The appointment puts Roper Greyell on the leading edge of a trend that is moving away from a traditional legal business model to one that sees clients as partners and proactively puts their businesses first. As Chief Executive Officer, Linda is responsible for driving the firm’s long-term strategy and vision with an emphasis on client collaboration.

“Historically, the legal industry has operated in a very traditional manner, but that’s changing. Now the shift is to become ‘big picture thinkers’ and to anticipate a client’s needs and provide practical solutions that make economic sense,” says Lucas.

Linda is a Chartered Professional Accountant with twenty years of experience in all aspects of finance and operations, and has worked in many different industries across Canada, the United Kingdom and the Caribbean. She looks forward to the challenge of pursuing Roper Greyell’s vision in a rapidly changing industry.

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