Canada: Bill 8 – Changes To British Columbia's Employment Standards Act

The Employment Standards Amendment Act ("Bill 8") has introduced changes to the Employment Standards Act ("ESA").  Bill 8 received First Reading on April 29, 2019 following a British Columbia Law Institute report released in December 2018, and received Royal Assent on May 30, 2019.

Changes have also been made to British Columbia's Labour Relations Code which are discussed here.

The notable changes discussed below came into force on May 30, 2019 unless otherwise indicated:

Collective agreement terms must meet or exceed ESA requirements

The main elements of a collective agreement must meet or exceed ESA requirements.  Previously, in certain areas, the ESA did not apply to collective agreements that contained provisions addressing such ESA requirements as hours of work, overtime, statutory holidays, annual vacation, seniority retention, recall, termination or layoff.  These provisions will now need to meet or exceed the standards set in the ESA.

Note that existing collective agreements will not need to be revised in order to comply with this amendment.  Only collective agreements that are negotiated after the amendment came in to effect must comply.

Comment:  This provision represents the greatest change for unionized employers of those contained in Bill 8 because it reverts the ESA to the pre-2002 regime.  Arbitrators will have jurisdiction to decide, pursuant to collective agreements, whether the specific provisions of collective agreements "meet or exceed" ESA requirements.  This will likely increase the length and expense of litigation about collective agreements.  It will be especially important for unionized employers to plan for the next round of collective bargaining, when it should be expected that unions will be seeking to capitalize on any collective agreement term that does not meet the ESA minimum.  This amendment suggests that unions cannot effectively bargain for their members.  The fact is that most collective agreements that do not meet certain ESA minimums were deliberately negotiated in that way to give the employer greater flexibility and, in exchange, the union bargained better rights or benefits elsewhere.

Increased obligation for employers to inform employees of their rights

While not yet in force, if prescribed by regulation, employers must make available or provide to employees, in a form to be provided or approved by the Director of Employment Standards, information about employee rights under the ESA.

Extended period of time employers must keep employee records

While not yet in force, if prescribed by regulation, if employers and the majority of affected employees at a workplace agree that employees will be responsible for cleaning and maintaining their own special clothing, employers must retain records for four years of the agreement and the amounts reimbursed. Also, employers must retain payroll records for four years after the date the payroll records were created.

Previously, the employers were only required to maintain the above records for two years.

Employer restrictions on employee gratuities

Employers must not withhold gratuities from employees, make deductions from employees' gratuities, or require employees to return or give their gratuities to employers, unless authorized or required by law.

However, employers may withhold, deduct, or require employees to give their gratuities to employers if employers collect and redistribute gratuities among some or all of their employees.

New statutory leaves

Critical illness or injury leave allows employees to take leave to provide care and support for a family member whose life is at risk as a result of an illness or injury. Employees who request this leave are entitled to up to 36 weeks of unpaid leave to provide care or support to family members who are under 19 years of age, or up to 16 weeks of unpaid leave if those family members are 19 years or older.  This aligns with Federal EI benefits.

Leave respecting domestic or sexual violence allows employees to take leave if they, their child, a minor under their care, or a prescribed person experiences domestic violence. Employees who request this leave are entitled to up to 10 non-consecutive days of unpaid leave in units of one or more days, or in one continuous period, each calendar year, plus an additional unpaid leave of up to 15 consecutive weeks.

Increased liability for severance pay

After three consecutive months of employment, if an employee gives notice of termination to their employer who then terminates the employee's employment during said notice period, the employer is liable to pay the employee the lesser of either an amount equal to the wages the employee would have earned for the remainder of the notice period, or the amount the employer is liable to pay on termination of employment without cause.

Wage recovery period extended

The period for an employee to be able to recover owed wages is extended from six to 12 months.  The limitation is now 12 months before the earlier of the date a complaint is made or the date the employment is terminated.

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