While it has been understood for some time that British Columbia’s NDP government was looking to modernize labour and employment laws, the extent of these amendments was not clear.
Well, the wait is over, as this week the provincial government formally announced its changes to the Employment Standards Act and to the Labour Relations Code, and there are important implications for unionized and non-unionized workers alike.
Employment Standards Act
The Employment Standards Act governs non-unionized work places and provides for minimum employment rights across the province. In fact, many workplace rights such as minimum wage, overtime pay and vacation entitlements originate from the ESA.
There are four main areas of change to the ESA that were announced this week:
- Child employment protections. With some limited exceptions, the age a child may work will be increased from 12 to 16 years old, and additional protections against hazardous work will be put in place for workers 16 to 18 years old. Some types of work deemed to be safe (such as stocking grocery shelves) will be permitted for 14 and 15 year olds.
- Expanded job-protected leaves. Workers escaping domestic violence will be provided up to 10 non-consecutive days of unpaid job-protected leave, or 15 weeks of consecutive unpaid leave, with the government committing to an engagement process for improving job protections of workers escaping domestic violence. Workers will also be allowed up to 36 weeks of leave to care for a critically ill child and 16 weeks to care for an adult.
- Improved Wage Protections. The legislation will regulate tips and tip pooling. Employers will be prohibited from withholding tips or other gratuities, deducting amounts from them, or requiring them to be turned over to the employer. Changes will not prevent legitimate tip pooling / tip sharing programs between front and back of house staff. Further protections include extending the time to recover wages before the Employment Standards Branch from 6 months to 12 months.
- Eliminating the Self-Help Kit and Introducing Investigations. Currently, workers who feel their rights under the ESA are not being respected are required to file a “self-help kit” before formalizing a complaint before the Branch. Ultimately it was felt that this created an unnecessary step that may discourage many workers from enforcing their rights, and so this requirement is being dropped. Complaints that are accepted by the Branch for resolution will also be investigated by Branch officers.
Labour Relations Code
The Labour Relations Code creates the legal and regulatory framework for unionized environments. This week, following a 3-month public consultation and review process, the government announced changes to the Code.
The 3 main takeaways from these changes are:
- Union Certification. The Labour Relations Board will have broader discretion to impose union certification when an employer is found to have improperly interfered in the certification process. The time requirements between an application for certification and an employee vote will also be shortened from 10 days to 5 business days.
- Union Raids. The Code permits employees to change their bargaining units, but only at certain times during the life of a collective agreement. When a new union secures the support of a majority of the employees in that unit and applies for certification, this is called a raid. Current legislation allows for raids to occur in the seventh or eighth month of each year of the collective agreement. The amendments will change the period of raids. For collective agreements of three years or less, raids may occur in the seventh or eighth month of the last year of the agreement. For collective agreements of more than three years, raids may occur in the seventh or eighth month of the third year of the agreement, and in each subsequent year.
- Education as an Essential Service. An “Essential Service” designation limits a bargaining unit’s ability to strike. Some services, such as paramedics, police and fire, are recognized as essential services as strike action would create a threat to life, personal safety or health of the population. Educational programs which had previously been designated as an essential service will no longer be so.
On its face, most of these amendments make sense. I can certainly see a strong public policy argument for protecting victims of domestic violence, clarifying workers’ tips and for respecting a teacher’s right to strike. I have some reservations about introducing an investigation process into the Employment Standards complaint process, as I am concerned about creating additional delays in an already lengthy process. That being said, time will tell whether these changes will bring about meaningful change.
At Kent Employment Law, we promote sustainable employment relationships. We believe that these relationships are mutually beneficial to employers and employees alike, and are founded on a relationship of trust and respect. If you have questions concerning these legislated changes, please contact one of our offices.