For members with stores in British Columbia: B.C. Law Institute proposes changes to Employment Standards Act

The Employment Standards Act sets minimum standards for terms of employment and working conditions in British Columbia.

The B.C. Law Institute is conducting a review and will make recommendations for reform of the Act. Under previous governments, reports by the B.C. Law Institute have been highly influential in changes to significant legislation.

The Institute’s consultation paper is found here: https://www.bcli.org/wordpress/wp-content/uploads/2018/06/Consultation-Paper_ESA.pdf. The consultation paper is detailed and balanced. The document is 450 pages long and is thus intimidating. Response to the consultation paper is due on 31 August 2018.

Member Update / Impact:

The consultation paper considers reform of the Act from start to end. There are a number of tentative recommendations, that while significant, have little to no impact upon the retail industry. Accordingly, those will neither appear below nor in our response to the B.C. Law Institute.

Overall questions for member input:

1. The commission has not placed priority on harmonization of Employment Standards regimes with other provinces in their mandate. The ten regimes are quite divergent. Is harmonization of employment standards a high priority for members?
2. The commission is seeking comments from stakeholders on the existing unionized worker exclusion:
   a. Should the terms of existing collective agreements apply in place of minimum requirements of the Act, or only if they are more favourable to employees than those in the Act?
   b. Should an employee covered by a collective agreement be able to file a complaint with the Branch or should they be restricted to the grievance procedure under the collective agreement.
   [Pages 36-41.]
3. The commission is also seeking comments on whether the Act should require that essential terms of employment be set out in writing when an employee is hired, and a copy be given to the employee. [Pages 48-49.]
4. The commission proposes instituting statutory sick leave provisions. (British Columbia and Nunavut are the only jurisdictions without statutory sick leave provisions at present). [Pages 173-186.]

Tentative recommendations where retail has specific interest:

1. A majority of the Institute’s project committee members recommend that the Act 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. A minority of committee members made an alternate recommendation, that a pattern of working hours for a workplace other than the standard of 8 hours per day, 40 hours per week should require worker (at least the majority of workers) consent by means of an averaging agreement. [Pages 52-53.]
2. The definition of “week” in section 1 of the Act should be amended to allow an employer to designate the day on which the period of 7 consecutive days begins for purposes of wage calculation and employee benefits under the Act, provided that the employer must: (a) follow a consistent practice following the designation; and, (b) provide adequate notice to affected employees of any subsequent re-designation of the beginning day of the 7-day period. [Pages 53-54.]
3. The current Act provides that an employee is entitled to be paid for at least two hours on any day on which the employee is required to report for work and does so, whether or not the employee is actually required to start work.
   The recommended revised wording is that the Act “should be amended to require that if an employee is required to report for work, and the employee is scheduled to worK
   a. more than four hours on the day in question, the employee must receive a minimum of four hours’ pay if work starts and a minimum of two hours’ pay if it does not;
   b. less than four hours on the day in question, the employee must receive a minimum of two hours’ pay, regardless of whether work starts or not;

   unless the employee is unfit to work or fails to comply with Part 3 of the Workers Compensation Act, or a regulation under Part 3 of that Act.” [Pages 68-71.]

4. There are two recommendations regarding work schedules where the discussion specifically mentions retail workers. The first would create a provision in the Act requiring 24 or 48 hours’ notice to employees of a change to a shift or work schedule in most circumstances. The second would permit an employee to refuse to report for work when that notice is not provided. [Pages 81-85.]

Other notable tentative recommendations impacting a wider range of employers that:

1. A recommendation that the Act should not be extended to apply to independent contractors. [Pages 24-26.]
2. A recommendation that the Act should not contain a definition of “dependent contractor” or distinguish between employees and dependent contactors. [Pages 26-32.]
3. A majority of the committee members prefer that the Act not supplant or supplement the common law regarding wrongful dismissal, or provide for the administrative adjudication of wrongful dismissal claims, except as now provided in relation to contraventions of section 83(1). However, a minority of the committee recommend that the Act should address wrongful dismissal and provide an administrative adjudication process for wrongful dismissal claims. [Pages 33-36.]
4. A recommendation that the Act’s provisions related to banking of overtime be repealed. [Pages 56-57.]
5. Three recommendations to better define averaging agreements for work schedules in the Act and related to employee approval of averaging agreements. [Pages 58-65.]
6. Two recommendations for changes in the Act regarding employee refusal of overtime. [Pages 65-68.]
7. A recommendation for a change in the Act regarding flexible work arrangements. [Pages 71-79.]
8. A recommendation that would remove the current obligation to receive consent from the employee for payment of wages by electronic deposit. [Pages 88-90.]
9. A recommendation to adjust the provisions in the Act with respect to vacation pay to align with common practice. [Pages 100-102.]
10. A recommendation to amend the eligibility requirements for statutory holiday pay. [Pages 102-111.]
11. A recommendation that a formula be set for minimum wage increases. [Pages 111-122.]
12. The majority of committee members recommended no change in paid vacation entitlements. However, a minority of committee members recommend that entitlement be increased to four weeks annually after 10 consecutive years of employment. [Pages 141-148.]
13. A majority of committee members recommend that the definition of immediate family for family responsibility leave be expanded to include a parent or child of an employee’s spouse. Minorities of committee members felt that a grandparent, aunt or uncle of an employee’s spouse should be included.
    The committee made a further recommendation to include a provision stating that an employer may require an employee to produce reasonable evidence of entitlement for leave. [Pages 155-163.]
14. A majority of committee members recommended a requirement for three months’ continuous employment as a qualifying period for statutory non-discretionary leaves. Minorities of committee members felt that the three month requirement only apply to pregnancy, parental or compassionate care leave, or, that there be no minimum qualifying period whatsoever. [Pages 186-188.]
15. A majority of committee members recommend that a notice of termination validly given to an employee should not be rendered invalid by reason only that the employee is allowed to work for up to one month after the end of the notice period. A minority of committee members would retain the existing provision in the Act which is that if an employee is allowed to work beyond the end of the notice period that a notice of termination is void. [Pages 198-199.]
16. The consultation paper makes four recommendations with respect to the employment of children:
    a. that employment of persons under 16 in industries or occupations likely to be injurious to their health, safety, or morals should be prohibited;
    b. that the Act should be amended to confer regulatory authority to designate industries and occupations likely to endanger the health, safety or morals of persons under 16, and, set a minimum age between 16 and 19 in any one or more of those industries or occupations;
    c. that the special regime for employment of children in recorded and live entertainment be retained; and,
    d. a majority of committee members recommended that the Act would require amendment to require a permit from the Director to employ a child below the age of 14, except for employment with parental consent in recorded and live entertainment, and, allow employment at age 14 and 15 with (i) parental consent in artistic endeavour, or, forms of “light work” designated by the Director, or, (ii) with a permit from the Director
    while a minority of committee members recommended that employment of anyone under 15 years of age without a permit from the Director (except in recorded and live entertainment) be prohibited. [Pages 203-216.]
17. Makes two recommendations regarding the employment of migrant workers. [Pages 216-229.]
18. Makes thirteen reasonable recommendations regarding the complaint and enforcement process. The most contentious of these recommendations likely surrounds recommendations to provide the Director discretion on whether to waive an administrative penalty following a determination that a requirement of the Act has been contravened. [Pages 245-290.]
19. Makes eight reasonable recommendations regarding enforcement mechanisms under the Act. There is a highly contentious discussion on the bankruptcy and insolvency exception where the minority recommendation would be to remove an earlier amendment which relieved directors and officers from liability for wages in cases of bankruptcy or other insolvency proceedings. [Pages 291-310.]

Next Steps:

1. RCC will consult members and produce a response to the consultation paper. Interested members are invited to contact Greg Wilson if they wish to provide input into RCC’s draft response.
2. RCC will coordinate with other employer associations to provide a more impactful response to the Institute on subject areas where we have a common interest with employers in other industries.

If you have any questions or concerns, please do not hesitate to contact: Greg Wilson, Director, Government Relations (B.C.) at 604-736-0368 or gwilson@retailcouncil.org