Canada: 2019 Amendments To BC's Employment Standards Act And Labour Relations Code

The British Columbia government recently implemented changes to the Employment Standards Act and the Labour Relations Code. These changes have important implications for both unionized and non-unionized workers. This bulletin provides an overview of some of the significant changes.

EMPLOYMENT STANDARDS ACT

The Employment Standards Amendment Act, 2019 ("Bill 8") received Royal Assent on May 30, 2019. The following amendments to the Employment Standards Act, R.S.B.C. 1996, c. 113 ("ESA") are now in force.

1. Child Employment Protections (Sections 9 and 9.1 of the ESA)

i. Minimum age raised to 16, with exceptions

Bill 8 raises the minimum age that a child can work from 12 years old to 16 years old. There are, however, certain exceptions including the ability of a child under the age of 14 to work with the permission of the Director of Employment Standards ("Director"). A further exemption permits 14 or 15 year-olds to carry out "light work" with the written consent of the child's parent or guardian. "Light work" means prescribed work or a prescribed occupation that is unlikely to be harmful to the health or development of a child who is 14 or 15 years old. An employer seeking to hire a 14 or 15 year-old to perform work other than "light work" must first obtain the Director's permission.

ii. No hazardous employment for children under the age of 16

An employer cannot hire a child who is under the age of 16 in a hazardous industry or in hazardous work. Further, an employer cannot hire a child who is 16 years old or a child between the ages of 16 and 19, in a hazardous industry or in hazardous work, unless the child has attained the prescribed age in respect of the hazardous industry or hazardous work.

2. Additional Grounds for Unpaid Leaves of Absence (Sections 52.11 and 52.5 of the ESA)

i. Critical illness or injury leave

Employees may take an unpaid critical illness or injury leave of up to 36 weeks if an immediate family member under the age of 19 is at risk of death. Employees may take up to 16 weeks of unpaid critical illness or injury leave if an immediate family member, aged 19 or older, is at risk of death.

ii. Leave due to domestic or sexual violence

Employees that experience domestic or sexual violence may take a leave of up to ten non-consecutive days, and an additional period of up to 15 consecutive weeks. Domestic or sexual violence includes sexual abuse by any person and not just by an intimate partner or a family member. Domestic or sexual violence also includes attempts: (i) by an intimate partner or family member to commit physical abuse; or (ii) by any person to commit sexual abuse.

3. Restrictions on Tips or Gratuities (Sections 30.3 and 30.4 of the ESA)

Employers are prohibited from withholding or deducting amounts from tips or gratuities, or requiring tips or gratuities to be turned over to them, unless it is for the purpose of tip pooling among eligible employees.

4. Broader Powers for the Director (Section 76 of the ESA)

Bill 8 permits the Director to conduct an investigation at any time so as to ensure compliance with the ESA. Bill 8 expands on the broad powers that the Director already has under the ESA to conduct an investigation, even if the investigation did not originate from a complaint.

5. Elimination of Self-Help Kit Requirement

Bill 8 removes the requirement that employees use a self-help kit to collect wages before filing a complaint with the Employment Standards Branch ("ES Branch"). The Director will now be called upon to investigate complaints that are accepted by the ES Branch for resolution. This change reflects the Director's heightened responsibility to investigate complaints.

6. Collective Agreements Must Meet or Exceed Certain ESA Entitlements (Section 3 of the ESA)

Any collective agreement that is made or renewed after May 30, 2019 must meet or exceed certain ESA entitlements regarding: (i) special clothing; (ii) hours of work and overtime; (iii) statutory holidays; (iv) annual vacation and vacation pay; and (v) seniority retention, recall, termination, and layoffs.

7. Resignation Period (Section 63 of the ESA)

If an employee with more than three months of service gives notice of his or her resignation and the employer terminates the employee's employment during that notice period, the employee is entitled to the lesser of the wages the employee would have earned during the remainder of the notice period, or the pay in lieu of the notice of termination that the employee is entitled to under the ESA.

8. Increased Wage Recovery Period (Section 80 of the ESA)

The period of time for which employees can recover wages before the ES Branch, has been increased from six months to 12 months. The 12-month wage recovery period applies to all employment standards complaints delivered to the ES Branch that were not resolved as of May 30, 2019.

9. Extended Record Keeping (Section 28 of the ESA)

The length of time that an employer must retain an employee's records after the termination of the employee's employment has increased from two years to four years. An employee's records include payroll records, averaging agreements, and agreements about special workplace clothing and statutory holidays.

LABOUR RELATIONS CODE

The Labour Relations Code Amendment Act, 2019 ("Bill 30") received Royal Assent on May 30, 2019. The following amendments to the Labour Relations Code, R.S.B.C. 1996, c. 244 (the "Code") are now in force.

1. Employer's Right to Communicate (Section 8 of the Code)

Bill 30 provides that a person has the right "to communicate to an employee a statement of fact or opinion reasonably held with respect to the employer's business", which is a considerable departure from the previous, more permissive statement 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".

2. Protections on Consumer Leafleting (Section 1 of the Code)

Bill 30 amends the definition of picketing to clarify that picketing does not include "lawful consumer leafleting that does not unduly restrict access to or egress from the place of business, operations, or employment, or prevent employees from working at the place of employment".

3. Faster Representation Votes (Section 24 of the Code)

Bill 30 requires that certification votes be conducted within five business days (rather than ten business days) after an application for certification is received. Further, a representation vote by mail can only be conducted under exceptional circumstances, or where all parties agree to a representation vote by mail.

4. Expansion of Remedial Certification (Section 14 of the Code)

Bill 30 gives the Labour Relations Board ("Board") greater authority, where it is "just and equitable", to order remedial certifications when an unfair labour practice is committed by the employer during organizing.

5. Longer "Statutory Freeze" Periods (Section 45 of the Code)

Bill 30 prohibits employers from altering terms and conditions of employment for employees for 12 months (an increase from four months) after an application for certification is granted, if: (i) a collective agreement has not been concluded; and (ii) a strike or lockout has not commenced.

6. Union Raids (Section 19 of the Code)

Union raids are now limited to the seventh and eighth month of the third year in the term of a collective agreement, and every year after that if the term is for more than three years. If a collective agreement is for a term of three years or less, a raid can only occur in the seventh and eighth months of the final year.

In the construction industry, if a collective agreement is for more than three years, union raids can occur in July and August of the third year, and every July and August after that. If a collective agreement is in force for a term of three years or less, a raid can only occur in July and August of the final year of the collective agreement.

In all of the above circumstances, if a raid is successful, the raiding union can apply to the Board to have the existing collective agreement terminated if two years or more remain in the term of the collective agreement.

7. Expanded Successorship Provisions (Section 35 of the Code)

Successorship provisions under the Code now extend to certain service contracts that have been re-tendered and bid on by new contractors, including: (i) building cleaning services; (ii) security services; (iii) bus transportation services; (iv) food services; and (v) non-clinical services in the health sector. The successorship provisions only apply if the service contracts are for substantially the same services as were previously provided.

8. Increased Fines for Non-Compliance (Section 158 of the Code)

Bill 30 increases the fine for individuals who fail to comply with Board orders from $1,000 to $5,000. Corporations also face a larger fine for non-compliance with Board orders; corporations will be required to pay $50,000 instead of $10,000.

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