There is No “I” in Team When Considering the “Meet or Exceed” Requirements Under Section 3 of the B.C. Employment Standards Act
August 26, 2025
Article by:
Andrew Hefford
Previously printed in the LexisNexis Labour Notes Newsletter.
In a preliminary ruling in BC Ferry Services Inc. -and- BC Ferry & Marine Workers’ Union, 2025 CanLII 8390, Arbitrator Arne Peltz determined that the “meet or exceed” test under s. 3 of the Employment Standards Act, R.S.B.C. 1995, c. 113 (the “ESA” or the “Act”) must only be applied to the bargaining unit as a whole and not to individual employees or sub-groups within the bargaining unit.
Background
BC Ferries is a large, sophisticated employer. It has a bargaining unit which is represented by the BC Ferry & Marine Workers’ Union, consisting of approximately 3,100 regular employees, 1,100 casual employees and 450 seasonal employees.
The parties are subject to a collective agreement which is scheduled to expire on October 31, 2025. It contains comprehensive provisions around hours of work and overtime. For the purposes of the arbitration, both the employer and the union agreed that those provisions, when considered together, meet the requirements of the “meet or exceed” test outlined in Part 4 of the ESA.
The dispute underlying the preliminary award concerned the scheduling and overtime practices of casual and seasonal employees. With respect to those groups of employees, the parties agreed that the collective agreement provisions regarding minimum weekly overtime, minimum weekly rest periods and maximum hours of work, considered together, did not meet the requirements of the “meet or exceed” test outlined the ESA. The union sought an order that sections 35, 36 and 39 of the ESA be deemed to be part of the collective agreement.
Arbitrator Peltz provided an in-depth review of the history of the “meet or exceed” provisions under section 3 of the ESA. In short, those provisions were removed from the ESA in 2002. As a result, from 2002 until 2019, if a collective agreement contained “any provision respecting a matter set out in Column 1”, the statutory minimum standard did not apply. However, in 2019, following a change in provincial government, the “meet or exceed” provisions were returned to the ESA with updated remedial language.
In this case, the union argued that the remedial language in the 2019 version of the ESA was materially different from the language in prior versions of the Act. In particular, it argued that the ESA provisions are now “deemed to be incorporated in the collective agreement as part of its terms” and, in contrast, the 1993 version of the Act had remedial language which stated that when the agreement did not meet or exceed the Act, the statutory provisions were “deemed to be incorporated in the collective agreement and to replace” the non-conforming provisions (emphasis added).
The union argued that the B.C. Labour Relations Board had been reluctant under the previous wording of the Act to ensure minimum standards for sub-groups and individuals because the only remedy was to replace the sub-minimal collective agreement provisions. The union added that the new remedial language allowed for the co-existence of negotiated terms for some employees and legislated terms for others. It submitted that section 3 of the ESA is now “intended to create some flexibility for collective agreements while still guaranteeing that individual employees are protected by a comparable floor of rights that cannot be negotiated away”.
Decision
Arbitrator Peltz determined that despite the differences in the remedial language, when considering the full context and history of the legislation, the substance of the remedial language still amounted to a replacement remedy. The Arbitrator went on to reason that past jurisprudence on the matter was binding. He concluded that the “meet or exceed” test under section 3 of the ESA must only be applied to the bargaining unit as a whole and not to individual employees or sub-groups within the unit.
Takeaway
The decision in this preliminary ruling offers clarity on an important labour relations issue in British Columbia, particularly on the extent to which parties to a collective agreement can seek to vary the provision of certain rights among sub-groups of bargaining unit employees.
It might be permissible for an employer and union to agree on certain collective agreement provisions that fall below the ESA minimums for some groups of employees so long as the rights provided to the bargaining unit as a whole meet or exceed the relevant provisions in the ESA (where and when applicable).
When determining whether the provisions of the collective agreement “meet or exceed” the ESA, it is important to keep in mind that the rights under consideration must be rationally and meaningfully connected.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.
August 26, 2025
Previously printed in the LexisNexis Labour Notes Newsletter.
In a preliminary ruling in BC Ferry Services Inc. -and- BC Ferry & Marine Workers’ Union, 2025 CanLII 8390, Arbitrator Arne Peltz determined that the “meet or exceed” test under s. 3 of the Employment Standards Act, R.S.B.C. 1995, c. 113 (the “ESA” or the “Act”) must only be applied to the bargaining unit as a whole and not to individual employees or sub-groups within the bargaining unit.
Background
BC Ferries is a large, sophisticated employer. It has a bargaining unit which is represented by the BC Ferry & Marine Workers’ Union, consisting of approximately 3,100 regular employees, 1,100 casual employees and 450 seasonal employees.
The parties are subject to a collective agreement which is scheduled to expire on October 31, 2025. It contains comprehensive provisions around hours of work and overtime. For the purposes of the arbitration, both the employer and the union agreed that those provisions, when considered together, meet the requirements of the “meet or exceed” test outlined in Part 4 of the ESA.
The dispute underlying the preliminary award concerned the scheduling and overtime practices of casual and seasonal employees. With respect to those groups of employees, the parties agreed that the collective agreement provisions regarding minimum weekly overtime, minimum weekly rest periods and maximum hours of work, considered together, did not meet the requirements of the “meet or exceed” test outlined the ESA. The union sought an order that sections 35, 36 and 39 of the ESA be deemed to be part of the collective agreement.
Arbitrator Peltz provided an in-depth review of the history of the “meet or exceed” provisions under section 3 of the ESA. In short, those provisions were removed from the ESA in 2002. As a result, from 2002 until 2019, if a collective agreement contained “any provision respecting a matter set out in Column 1”, the statutory minimum standard did not apply. However, in 2019, following a change in provincial government, the “meet or exceed” provisions were returned to the ESA with updated remedial language.
In this case, the union argued that the remedial language in the 2019 version of the ESA was materially different from the language in prior versions of the Act. In particular, it argued that the ESA provisions are now “deemed to be incorporated in the collective agreement as part of its terms” and, in contrast, the 1993 version of the Act had remedial language which stated that when the agreement did not meet or exceed the Act, the statutory provisions were “deemed to be incorporated in the collective agreement and to replace” the non-conforming provisions (emphasis added).
The union argued that the B.C. Labour Relations Board had been reluctant under the previous wording of the Act to ensure minimum standards for sub-groups and individuals because the only remedy was to replace the sub-minimal collective agreement provisions. The union added that the new remedial language allowed for the co-existence of negotiated terms for some employees and legislated terms for others. It submitted that section 3 of the ESA is now “intended to create some flexibility for collective agreements while still guaranteeing that individual employees are protected by a comparable floor of rights that cannot be negotiated away”.
Decision
Arbitrator Peltz determined that despite the differences in the remedial language, when considering the full context and history of the legislation, the substance of the remedial language still amounted to a replacement remedy. The Arbitrator went on to reason that past jurisprudence on the matter was binding. He concluded that the “meet or exceed” test under section 3 of the ESA must only be applied to the bargaining unit as a whole and not to individual employees or sub-groups within the unit.
Takeaway
The decision in this preliminary ruling offers clarity on an important labour relations issue in British Columbia, particularly on the extent to which parties to a collective agreement can seek to vary the provision of certain rights among sub-groups of bargaining unit employees.
It might be permissible for an employer and union to agree on certain collective agreement provisions that fall below the ESA minimums for some groups of employees so long as the rights provided to the bargaining unit as a whole meet or exceed the relevant provisions in the ESA (where and when applicable).
When determining whether the provisions of the collective agreement “meet or exceed” the ESA, it is important to keep in mind that the rights under consideration must be rationally and meaningfully connected.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.