Significant revisions to the British Columbia Employment Standards Act (“ESA”) that purport to impact nearly all workplaces in British Columbia are scheduled to come into force shortly.
Bill 8, entitled the Employment Standards Amendment Act, 2019, was introduced on April 29, 2019. It passed second reading on May 13, 2019. Substantial changes to the ESA will result if the bill (as expected) comes into force in its current form. Below are the most significant amendments.
Application of the ESA to Collective Agreements
The ESA does not apply to unionized workforces if a collective agreement has any provisions dealing with hours of work or overtime, vacation, statutory holidays, termination of employment and lay-offs. Bill 8 proposes to revise the ESA such that it will require a collective agreement to meet or exceed the applicable provisions in the ESA. Many collective agreements contain provisions that do not meet employment standards minimums (such as overtime pay for hours worked). This is generally viewed as a benefit in collective bargaining because it provides the parties with flexibility in bargaining (e.g., a union may accept lower overtime rates in exchange for better benefits coverage). This change will not impact collective agreements currently in force but will apply to collective agreements entered after Bill 8 becomes law.
This is a significant amendment and employers will need to take the increased operational costs into account in the next round of bargaining.
New Statutory Leaves
As noted in a previous blog post, the ESA was recently amended to include new leaves – including a “Child Death Leave” and “Crime-related Child Disappearance Leave” – and expand the length of “maternity” leaves. Bill 8 is introducing two additional statutory leaves, including leaves of:
- up to 17 weeks per year for persons dealing with domestic violence;
- up to 36 weeks per year for persons caring for critically-ill family members under the age of 19; and
- up to 16 weeks per year for persons caring for critically-ill adult family members.
Greater Wage Recovery Period
Employees can currently recover only 6 months’ worth of unpaid wages under the ESA. Bill 8 proposes to increase the wage recovery period to 12 months. In addition, the self-help kit is being eliminated as a required step before filing a complaint with the Employment Standards Branch.
Severance if employment is terminated during a resignation period
If a person’s employment is terminated without just cause after he or she has provided notice of resignation, an employer will be required to pay the lesser of: the amount of termination pay owed pursuant to the ESA; and the amount the employee would have received had he or she worked out the resignation period.
Restrictions on Children in the Workforce
The legal age to work in British Columbia is currently 12 years old. The age is being increased to 16 years of age with exemptions that will allow 14- and 15-year olds to perform light work such as stocking shelves at a grocery store. The government will provide the list of activities and types of jobs eligible for this exemption at a later date. Additionally, children aged 16-18 years old will not be permitted to engage in “hazardous work” in a “hazardous industry” unless they qualify for a still to be determined exemption.
Conclusion
The proposed changes constitute the most significant changes to the ESA in almost twenty years. Employers in unionized environments will be particularly impacted by the revisions. The proposed revisions are subject to change as Bill 8 makes its way through the legislature; however, it is expected to pass in its current form.
