Bill 8 – Amendments to the ESA
On April 29, 2019, the BC NDP Government’s Minister of Labour, Harry Bains, introduced Bill 8 – Employment Standards Amendment Act (“Bill 8”) for first reading. The Bill will make extensive changes to the Employment Standards Act (ESA) in British Columbia, the first set of comprehensive amendments in 15 years. Bill 8 represents the first wave of changes that the government plans to implement to the ESA.
These changes have been introduced to the Legislature and are not yet law. However, employers should begin preparing for these new requirements, as we expect them to ultimately be adopted.
ESA Applies to Collective Agreements
At the moment, certain portions of the ESA do not apply to collective agreements that contain any provisions involving: hours of work or overtime, statutory holidays, annual vacation or vacation pay, seniority retention, recall, termination of employment, and layoff.
Bill 8 requires provisions of a collective agreement that deal with certain matters to be consistent with the minimum standards of the corresponding parts of the ESA. Specifically, the ESA will only not apply if a collective agreement provision meets or exceeds the minimum standards set out in the corresponding Part of the ESA.
Collective agreements that are currently operating at the time the legislation comes into force will not be affected. As such, any collective agreements that are negotiated after Bill 8 comes into force will have to satisfy this new requirement.
Bill 8 will allow an employee to take unpaid leave to provide care and support to a critically ill family member. Employees may take up to 36 weeks to care for a child (under 19 years of age) and up to 16 weeks for an adult (19 years or older).
Further, Bill 8 introduces unpaid leave for employees to assist them in dealing with issues associated with domestic violence. Employees may take up to 10 days of unpaid leave, which may be taken in units of one or more days or in one continuous period. In addition to the 10 days of unpaid leave, an employee may take up to 15 weeks in “one unit of time” or broken up in more than one unit of time, with the employer’s consent.
Wage Recovery Period Lengthened
Bill 8 changes the time in which an employee may recover unpaid wages from six to 12 months. Further, the recovery period may be extended to 24 months in “prescribed circumstances”. This suggests that the Regulations may set out when a 24 month extension is appropriate. The Minister of Labour has indicated that a 24 month recovery period would apply in circumstances of “willful or severe contraventions of the Act”.
Severance for Dismissal during Notice of Resignation Period
Bill 8 makes it clear that if an employer dismisses an employee during the employee’s notice of resignation period, they are required to pay severance. Specifically, if after three consecutive months of employment, an employee provides notice of resignation and the employer dismisses the employee without cause during that notice period, the employer is liable to pay the employee an amount equal to the lesser of:
- the money the employee would have earned for the remainder of the resignation notice period; or
- the money the employer is required to pay the employee in lieu of notice according to the ESA.
Regulation of Gratuities
The amendments regarding tips and gratuities create a legal framework for regulating tips and tip pooling. Under Bill 8, employers are prohibited from withholding or deducting gratuities, or requiring the employee to return or give tips or gratuities to the employer. Tip pooling is permitted, but an employer may not share in the redistribution of gratuities or tips, unless the employer regularly performs the same work as other workers in the tip pool.
Amendments to Corporate Officer Liability
Bill 8 gives the Director of Employment Standards the discretion to waive payment of a monetary penalty imposed on a corporate officer in the following circumstances:
- the corporate officer is required to pay wages owed to an employee and complies with that requirement;
- the corporate officer’s contravention of the ESA or the Regulation was not deliberate or negligent;
- before the determination, the employer’s basis for contesting the matter reflected an arguable interpretation of the law or a valid dispute of the facts; and
- a “prescribed circumstance”, which presumably will be set out in the Regulation.
Protections for Child Workers
Bill 8 increases the age in which a child can work from 12 to 16. An exception will exist for children between the ages of 14 and 15, which will allow them to do “light work”, such as stocking shelves or delivering newspapers. Children in this age category will not be permitted to work in a “hazardous industry” or perform “hazardous work”. Children between the ages of 16 and 18 will be permitted to work in a hazardous industry or do hazardous work so long as they are the “prescribed age”. The prescribed age in respect of a hazardous industry or hazardous work will be set out in the Regulation.
Changes to Modernize the Employment Standards Branch
At the moment, the ESA requires an individual to use the self-help kit before filing a complaint with the Employment Standards Branch (ESB). Bill 8 will eliminate this requirement. Under the new amendments the Director of Employment Standards must investigate all complaints accepted for resolution by the Branch. This process may include dispute resolution. If the Director decides that the complaint may relate to employees other than the complainant, the Director may postpone the investigation and conduct a broader investigation.
Bill 8 aims to improve services provided by the ESB by allowing the Branch to waive or raise penalties, requiring employers to inform workers of their rights, and requiring licensing for temporary help agencies.
In order to meet its goals, Labour Minister Bains announced a $14 million stimulus package to the ESB over three years, to increase funding for enforcement. The BC Government intends to augment non-legislative improvements to the Branch by increasing education and outreach, adding multilingual capacity, and providing enhanced services for employees and employers with visual and hearing impairments.
The Second Wave of Amendments
The proposed amendments were introduced for first reading and are subject to change before being passed into law. Further, this is the first of two sets of ESA amendments that the BC Government intends to implement. This first wave of amendments has been described by the BC Government as most pressing, and the second wave will likely involve amendments relating to hours of work, overtime, and termination provisions.
Bill 30 – Amendments to the Labour Relations Code
On April 30, 2019, the BC government also introduced the Labour Relations Code Amendment Act (“Bill 30”), for first reading. Bill 30 will make significant changes to the Labour Relations Code (LRC) which employers should be aware of.
Union Successorship Extended to Contract Services
The LRC provides that union successorship occurs when a business or part of a business is sold, leased, transferred, or otherwise disposed of. At the moment, union successorship does not generally occur when a service is contracted out or a contract is retendered.
Bill 30 will amend the successorship provisions of the LRC by requiring that, if a contract for services is retendered and “substantially similar services” continue to be performed, then union successorship will occur. The contractual services affected by the amendments include the following:
- building cleaning services;
- security services;
- bus transportation services;
- food services;
- non-clinical services provided in the health sector; and
- other services that the Government may prescribe by Regulation.
Unlike other sections of Bill 30 that will take effect on the date of Royal Assent, these amendments will be retroactive to the date of first reading, April 30, 2019.
Changes to Arbitration Procedures
Under the current legislative framework, a party must apply for expedited arbitrations under section 104 of the LRC within 45 days of the completion of the grievance procedure. Under Bill 30, this time limit is shortened from 45 days to 15 days.
Furthermore, Bill 30 will require arbitrators to conduct a case management conference within seven days of being appointed. The arbitrator will have to conclude the arbitration within 90 days, and the decision must not exceed seven pages and be completed within 30 days after a hearing.
Secret Ballot is Maintained
The secret ballot for union certification is maintained in the proposed amendments. However, Bill 30 will require that a secret ballot vote take place within five business days. This will shorten the period of communication before a secret ballot vote from the current 10 day time limit.
Mediation for Adjustment Plan Negotiations
Section 54 of the LRC requires an employer to give 60 days’ notice to a union if it “intends to introduce a measure, policy, practice or change that affects the terms, conditions or security of employment of a significant number of employees.” After notice is given, the employer and union are required to meet in good faith, and develop an adjustment plan.
Bill 30 will provide that in the event an adjustment plan is not agreed upon, either party may apply to the Mediation Division for the appointment of a mediator. Further, if mediation is not successful, then the mediator may make non-binding recommendations for the terms of an adjustment plan for consideration by the parties.
Changes to Raiding Periods
Bill 30 provides that for a collective agreement in force for three years or less, union raids will be permitted in the 7th and 8th months of the last year of the collective agreement, and the 7th and 8th months of each year of continuation thereafter.
For collective agreements that have a term of more than three years, union raiding activity will be allowed during the 7th and 8th months in the third year of the collective agreement, and each year thereafter.
The construction industry will be treated differently from other industries by permitting union raids to occur in July and August of every year the collective agreement is in force.
In the event that a union raid is successful, and there are two or more years remaining in the term of the collective agreement, the union may apply to the Board for an order that the collective agreement has expired. Unions may also apply for any other determinations that the Board considers appropriate.
Freeze Period after Certification Extended
Bill 30 will amend section 45(1)(b)(i), which prohibits an employer from altering the terms or conditions of employment for employees for four months after certification, where a collective agreement is not in force. The freeze period is intended to reflect a reasonable time for parties to negotiate a first collective agreement and will be increased from four months to 12 months.
Definition of “Picketing” Consistent with SCC
Bill 30 will amend section 1 by amending the definition of “picketing” to include:
… but does not include lawful consumer leafleting that does not unduly restrict access to or egress from that place of business, operations or employment or prevent employees from working at or from that place of employment;
This makes the current definition consistent with a decision by the Supreme Court of Canada in 1999, which found the definition unconstitutional.
Employer Communication Rights Restricted
The current language of section 8 of the LRC states that a person has “…the freedom to express his or her views on any matter, including matters relating to an employer, a trade union or the representation of employees by a trade union, provided that the person does not use intimidation or coercion.”
Bill 30 repeals and replaces the language of section 8 and narrows the degree to which an employer may communicate their views or opinions about labour relations. Specifically, Bill 30 provides that “nothing in this Code deprives a person of the freedom to communicate to an employee a statement of fact or opinion reasonably held with respect to the employer’s business.”
Bill 30 amends section 6 of the current LRC by making prohibited expression a potential unfair labour practice. Employers will have to proceed with a high degree of caution when communicating their opinions on union related issues.
Moreover, Bill 30 provides an expanded power to the Board to issue remedial certifications if the Board determines that an unfair labour practice was committed during an organizing campaign and that it is “just and equitable” in the circumstances to do so.
Fines Increased by a Multiple of Five
The fines that the Board may issue for breach of an order are increased from $1000 to $5,000 for individuals, and from $10,000 to $50,000 for corporations and unions.
Enforcement Mechanism for Failure to File Collective Agreement
Bill 30 creates an enforcement mechanism to ensure collective agreements are properly filed with the Board. Specifically, the provision provides that if a collective agreement or ancillary agreement has not been filed, the Board may decline to consider them in any proceedings before the Board.