British Columbia Law Institute Publishes Report on the Employment Standards Act: Changes to BC Employment Standards Anticipated in 2019

Written with the assistance of Bobby Sangha, Articled Student.

On December 10, 2018, the British Columbia Law Institute (the “BCLI”) published its 300 page report (the “Report”) on reforming the BC Employment Standards Act (the “ESA”). The Report represents the culmination of the BCLI’s ESA Reform Project, which commenced in 2014 and followed its consultation paper published earlier in 2018.

The Report also comes on the heels of the promise by the Minister of Labour, Harry Bains, at the annual BC Federation of Labour Convention that legislation will be introduced in the upcoming spring session to revamp the ESA.

We expect that Report’s recommendations will likely provide the framework for legislative change. However, there is some considerable concern among employers that the Minister may impose more onerous changes than those recommended in the Report.

Employers who are members of business or trade associations would be well served to encourage those associations to contact the Ministry of Labour to express any concerns they may have regarding the Report’s recommendations or other suggested changes to the ESA. Providing specific examples of how your business will be impacted will be most persuasive. Employers or associations who require assistance expressing their concerns should contact us at their earliest opportunity.

Below, we provide some of the more notable recommendations of the Report.

Notable Recommendations

• The ESA should not contain a definition of “dependent contractor” or distinguish between employees and dependent contractors. Note: This would exclude individuals who are truly contractors from the ESA, while individuals who are mischaracterized as contractors will remain covered.
• The threshold of employee approval for an averaging agreement should be an affirmative vote of 60 percent of the affected employees who vote, provided a minimum of 50 percent of the affected employees have voted.
• The ESA should be amended to restore a provision requiring 24 hours’ notice to employees of a change to a shift or work schedule unless the change:
  • will entitle the employees to overtime pay;
  • is an extension of a shift prior to the end of the shift; or
  • must be made with less than 24 hours’ notice because of unforeseen circumstances.

• The ESA should be amended to provide that:
  • an employee may decline to work outside the employee’s scheduled hours of work if doing so would:
    • conflict with significant family-related commitments that the employee cannot reasonably be expected to alter or avoid;
    • interfere with scheduled educational commitments or with appointments or procedures in connection with professional health care; or
    • create a scheduling conflict with other employment.
  • an employee may decline to work more than 12 hours in a day or 48 hours in a week except in the event of an emergency, or as otherwise provided in an applicable regulation, variance, or averaging agreement.

• The ESA should be amended to contain a definition of “emergency” or “emergency circumstances” that would justify exceeding statutory limits on hours of work to the extent necessary to prevent serious interference with the ordinary operations of the employer, in cases of:
  • accident to machinery, equipment, plant or persons;
  • urgent and essential work to be done to machinery, equipment or plant;
  • a significant present or impending threat to human life, health, or safety, or extensive or irreparable damage to property;
  • urgent and essential work needed to assist customers of the employer facing circumstances described in paragraphs 1 to 3; or
  • other unforeseen or unpreventable circumstances.
• Provisions on tips and gratuities corresponding in substance to Part V.1 of the Ontario Employment Standards Act, 2000 should be added to the ESA. Note: Ontario is in the process of reviewing whether this provision should be replaced.
• Existing categories of exclusions from minimum enforcement standards should undergo a systematic review by government to determine whether they continue to be justified.
• The ESA should allow one or more alternate standard patterns of working hours within the 40-hour week in addition to the standard of 8 hours per day, and require a notice period for a change from one standard alternate pattern to another.
• The ESA should not be amended to add new non-discretionary leave entitlements.
• The group termination provisions of the ESA should be amended to allow an employer’s obligations to affected employees to be satisfied through a combination of notice and termination pay, whether or not the employer has given the required notice to the Minister within the required timeframe.
• Definitions of “director” and “officer” should be added to the ESA which draw upon the definitions of “director” and “senior officer” in the Business Corporations Act, and possibly also upon corresponding definitions in the Societies Act and federal corporate legislation.
• Section 97 of the ESA should be amended by deleting the words “or a substantial part of the assets” to correspond with the successor employer provision [section 35(1)] in the Labour Relations Code. Section 97 of the ESA should also be amended by adding the operation of a business under a receiver or receiver-manager as a circumstance in which the employment of an employee of the business is deemed to be continuous for the purposes of the Act.