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BC employment standards to be overhauled
May 14, 2002

On May 13, 2002, the BC government introduced Bill 48 in the Legislature and gave it first reading. The Bill, titled the Employment Standards Amendment Act, 2002, proposes significant changes to the Employment Standards Act. These are the highlights of Bill 48.

Part 1 – Introductory Provisions
Bill 48 contains a major change to the provisions respecting the scope of the Employment Standards Act. The current meet or exceed provisions respecting collective agreements have been repealed and replaced with express provisions respecting collective agreement relationships.

The provisions of the Act respecting hours of work and overtime, statutory holidays, vacation and vacation pay, and seniority, recall, and termination or layoff, will no longer apply to collective agreements that contain provisions respecting those matters.

Numerous other sections of the Act will not apply to employees covered by collective agreements provided their collective agreement has provision relating to those matters. In addition, an arbitrator pursuant to a collective agreement is provided with the jurisdiction to resolve any disputes involving the application of the new scope provisions of the Act.

Part 4 – Hours of Work and Overtime
Bill 48 proposes several significant changes to Part 4 of the Act. Greater flexibility for employers to schedule non-traditional shifts is provided. In addition, overtime rates and thresholds will be changed in favour of employers.

Minimum Daily Hours
Under the present provisions of the Act, an employer must pay to employees who show up for work a minimum of 4 hours pay if the employee starts work, or 2 hours pay if the employee does not start work.

Bill 48 proposes changes that will require employers to pay a minimum of 2 hours if an employee reports to work, whether or not that employee starts work, and unless the employee is unfit to work or fails to comply with requirements of workers’ compensation legislation. Employers will only be required to pay 4 hours if the employee was scheduled to work more than 8 hours that day. If the employee actually works over either of the minimums, the employee will receive pay for the hours actually worked.

If work is suspended for a reason beyond the control of the employer, the employer must pay a minimum of 2 hours pay which is less than the 4 hours pay required under the current provisions.

Agreements to Average Hours of Work
Bill 48 will repeal the flexible work schedule provisions of the Act and replace them with provisions allowing for averaging agreements under which hours of work are averaged for up to 4 week periods for the purpose of determining overtime and premium pay.

An employer and employee may agree to average an employee’s hours of work over 1, 2, 3 or 4 week periods provided the agreement meets the preconditions of the new section.The agreement must not provide for an average of over 40 hours per week during the specified period. Further, there are no longer any restrictions on how long the agreement to average may be in place.

If the employer requires an employee to work in excess of an average of 40 hours per week during the specified period, the employee shall receive 1½ times their regular wage for the time worked in excess of the 40 hour average. If the employer requires an employee to work in excess of the daily hours specified in the agreement, the employer shall receive 1½ times their regular wage for any time worked over 8 hours that day, and double time for any time worked over 12 hours that day.

If an employee is required, or allowed, to work in excess of 12 hours in one day, the employee shall receive double time for all hours worked in excess of 12 hours.

Overtime Wages
Bill 48 contains some slight changes to the overtime rates and thresholds in the Act.
Currently, employees receive double their regular wage for hours worked in excess of 11 hours in one day. Bill 48 proposes the threshold for double time to be 12 hours in one day.

In addition, presently under the Act, an employer must pay 1 ½ times the regular rate for hours worked in excess of 40 in a week and double wages for time worked in excess of 48 hours in a week. Bill 48 proposes a requirement of only 1½ times the regular wage for all hours worked in excess of 40 hours a week and no provision for double wages in respect of weekly hours.

Part 5 – Statutory Holidays
Bill 48 contains changes to the provisions respecting the entitlement of employees to statutory holiday pay and it also creates a new formula for calculating statutory holiday pay.

Bill 48 eliminates the requirement for an employer to schedule another day off for employees who work on a statutory holiday. It also changes the threshold for double time from 11 hours to 12 hours.

If statutory holiday falls on a non-working day
The current language provides that the employee who has a non-working day on a statutory holiday must be given another day off with pay, it may be credited to the employees time bank or it must be scheduled before the employee’s annual vacation and before the termination of employment. The repealing of this section means that an employee who has a non-working day on a statutory holiday does not receive a working day off with pay.

Substituting another day for a statutory holiday
Bill 48 eliminates the reference to collective agreement substitutions of days off for statutory holidays. It also explains the process for substitutions in respect to individual employees and it reduces the requirements to keep records from 5 years to 2 years.

Part 6 – Leaves and Jury Duty
Bill 48 contains several housekeeping amendments to the leave provisions of the Act and some minor additions. The Bill clarifies that entitlement to pregnancy and parental leaves is in “consecutive weeks”. Also, Bill 48 requires a time period within which birth father parental leave requests must be made.

Part 7 – Annual Vacation
Bill 48 requires that an agreement to pay vacation pay on an employee’s scheduled paydays must be in writing. The Bill also removes the meet or exceed provisions for annual vacation and vacation pay for employees covered by a collective agreement.

Part 8 – Termination of Employment
Bill 48 contains several housekeeping amendments to the termination provisions of the Act and some minor additions, including that an employer’s liability for group termination pay is in addition to any liability under section 63 or a collective agreement and that notice provided under the Act cannot run concurrently with a temporary layoff.

The Bill also would alter the exemption for construction workers to include those working at one or more construction sites. This is in part a reaction to a recent case where the British Columbia Supreme Court interpreted the exemption very narrowly.

One major change to this part of the Act is the repeal of the “meet or exceed” provisions. These provisions were repealed by the new scope provision in section 3 of the Act. Another significant change is in the repeal of section 70 of the Act that dealt with individual layoff for employees with the right of recall under a collective agreement.

Part 9 – Variances
Bill 48 contains three changes to the types of minimum standards, which may be the subject of a variance. These are: split shifts, overtime for employees not on an averaging agreement, and the number of weeks covered by an averaging agreement. The Bill would also alter the language of the Act making a variance possible provided it is not inconsistent with the purposes of the Act. This is in contrast with the current language, which requires the variance to be consistent with the intent of the
Act.

Part 10 – Complaints, Investigations and Determinations
Bill 48 provides a new operating model under which the Director of Employment Standards may require complainants to take requisite steps in order to facilitate resolution or investigation of the complaint. The Director may refuse to deal with complaints which can be dealt with under section 3, the collective bargaining provisions of the Act. The changes to this part also allow the Director of Employment Standards to assist in settling complaints. Any such settlements are binding on the parties. The Director may refer any failure to comply with settlement terms to Supreme Court for enforcement. The changes to the Bill no longer require the Director to provide written reasons for a Determination and it also creates a procedure by which parties to the Determination can request written reasons.

Determination
Bill 48 allows the Director of Employment Standards to order further remedies. The Director may order the employer to: pay wages to an employee by direct deposit, employ a payroll service, pay costs for inspections under section 85, and post notice respecting Determinations or requirements of this Act.

Limit on amount of wages required to be paid|
Bill 48 limits the employers liability to 6 months preceding the date of the complaint or the date of the termination whichever is earlier. Current legislation limited the liability of employers to 24 months preceding the date of the complaint or the date of the termination whichever was earlier.

Part 11 – Enforcement
The changes to this part reflect the proposed changes to the provisions concerning settlement agreements and allow employees to enforce a settlement agreement in the same way a determination and order are currently enforced. The Bill also provides that penalties may be imposed in accordance with the regulations. Significant amendments to the regulations are expected in the next few months.

Part 12 – Employment Standards Tribunal
The only amendment to this part proposed in Bill 48 is to repeal the superfluous language in section 108 stating the powers of the Tribunal to decide questions of fact or law arising in the course of an appeal.

Part 13 – Appeals
Bill 48 proposes a more streamlined appeal process and sets out the specific grounds for appeal allowed under the Act. The time for filing an appeal of a determination is extended from 8 days (if served with the determination personally) or 15 days (if served by registered mail) to 21 days (if served personally) and 30 days (if served by registered mail). The proposed amendments also allow for an appeal fee to be prescribed by regulation. Bill 48 also repeals the language in section 114, which allows the tribunal to refer the matter back to the director (the Branch) for further investigation or to recommend that an attempt be made to settle the matter.

Part 14 – General Provisions
Bill 48 would remove the language in the Act, which prohibits the same person from conducting an investigation under the Act and imposing a penalty.

Bill 48 also authorizes changes to the regulations to exclude the application of the regulations to employees covered by a collective agreement. Other changes to the provision authorizing regulations includes the authorization to establish the conditions that must be met before a person may employ a child under 15 years of age, to prohibit employment of children under 12, with exceptions for certain industries, to prescribe a schedule of penalties for contravention of the Act, and to prescribe an appeal fee.

The transitional provisions of Bill 48 state that on the date the provisions concerning averaging agreements come into force, a flexible work schedule under the current act is cancelled. In addition, many of the proposed changes concerning overtime, statutory holidays and the appeal process are to come into force by regulation.