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.
