Previously published by The Lawyer's Daily, a division of LexisNexis Canada
The laws that govern both unionized and non-unionized workplaces in British Columbia are changing. Bill 8, the Employment Standards Amendments Act, 2019, received its first reading in the B.C. Legislature on April 29, 2019. On the following day, Bill 30, the Labour Relations Code Amendment Act, also was tabled for its first reading.
Both bills are long anticipated by the B.C. labour relations community and deliver on a wide range of campaign promises made by the B.C. NDP government in the run-up to the 2017 provincial election.
The changes to the Labour Relations Code largely mirror the recommendations of the government appointed three-member panel, which produced its report in late 2018. The secret ballot vote for certification has been maintained — a return to a card-based certification would reportedly have been rejected by the B.C. Green Party, who hold the balance of power in B.C.'s minority NPD-led legislature.
However, many of the changes to the Code are designed to make the certification process easier for unions, without attracting the political fallout that a return to card-based certification would. Examples of those "under the radar" changes include narrowing an employer's right to communicate to employees during an organizing drive (s. 8), reducing the time between a certification application and a vote to five business days (and therefore reducing the practical window of time during which employers can communicate with employees, see ss. 1 and 24), and making remedial certifications more accessible as a remedy for employer breaches of the Code during an organizing drive (s. 14).
The Employment Standards Act (ESA) will also see changes. Those changes are perhaps less dramatic than the changes to the Code. Employees subject to the B.C. ESA will see an increased entitlement to protected (unpaid) leaves, including for workers trying to escape from domestic violence and for employees caring for a critically ill family member.
Bill 8 also introduces procedural changes for complaints brought before the Employment Standards Branch, and an increased wage recovery limitation period from six to 12 months (and potentially up to 24 under exceptional circumstances).
However, one change to the ESA particularly has received little attention but will have a substantial impact on collective bargaining in the province.
Section 3 of the B.C. ESA allows employers and unions to contract out of a number of parts of the ESA, though a collective agreement, if that collective agreement contains "any provision" relating to the parts of the ESA which may be contracted out of. Those parts include hours of work and overtime, statutory holidays, annual vacation or vacation pay and provisions relating to termination and layoff. That clear exclusion threshold has allowed for flexibility in collective bargaining, particularly in respect of scheduling and overtime provisions where working conditions require non-standard work schedules for unionized employees.
Bill 8 will change that collective agreement ESA exclusion threshold. Collective agreements in B.C. will be required to "meet or exceed the requirements" of the ESA, before the ESA can be contracted out of. That change is in line with most other Canadian jurisdictions.
However, it has the potential to increase labour costs to employers in a way that may not have been anticipated in recent rounds of bargaining (or at the time of bidding on projects). The change could also represent a windfall for unionized employees, who as a result of collective bargaining may not currently be entitled to the daily or weekly overtime provisions of the ESA.
Section 39 of Bill 8 contains a grandfathering provision that continues current exclusions for collective agreements "in effect" at the time the new legislation comes into force. The new threshold for contracting out will not apply until a new collective agreement is concluded, which reduces potential chaos that might have been caused by an immediate change. Nonetheless, the pending change still represents new leverage for unions in all upcoming collective bargaining for provincially regulated employees.
Finally, because ESA leaves cannot be contracted out of (under either the old standard or the new), the new leaves set out in Bill 8 will apply to unionized employees in British Columbia at the time the legislation comes into force. Employers, unions and unionized employees should all be aware of that coming change.
It remains to be seen what meaning will be given to the "meets or exceeds" language in the ESA. While that language is common across Canadian jurisdictions, its interpretation is not consistent. The balance of arbitral authority attempts to apply a holistic "basket of benefits" approach, but a line-by-line comparison has also been adopted. A line-by-line approach further reduces the ability of unions and employers to creatively address project specific problems, and in the humble view of the author, should not be adopted in B.C.
Together, Bills 8 and 30 have constricted the playing field on which unions and employers may bargain a collective agreement. Both those parties should be aware of those changes as the delicate balance of collective bargaining continues to unfold in B.C.
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