Changes involve young workers, unpaid leaves, labour relations
Employers in British Columbia have seen much change of late, with significant increases to minimum wage and an employer health tax.
Now they’re facing even more adjustments with the passage of Bill 8, the Employment Standards Amendment Act — and this is just the first wave, apparently, as further alterations are expected to be introduced this fall.
“When British Columbians head out to their workplace, they need to know their safety and rights are being protected in law,” said Harry Bains, minister of labour. “We are making improvements that are long overdue — bringing back basic rights and protections that were gutted by the old government.”
But in looking at the changes to the employment standards, they’re not done in a balanced manner, said Jeff Guignard, executive director of the Alliance of Beverage Licensees (ABLE BC) and spokesperson for the Coalition of BC Businesses.
“We are in favour of making changes to the Employment Standards Act (ESA); we’re committed to embracing the changing world of work. We just want to make sure that things are done in a fair, modern and balanced manner,” he said.
“When it comes to wage rates, or employment standards or labour issues, government does seem to believe that B.C.’s small and medium-sized businesses can just afford to pay more, and they can’t — we’re starting to do business in a very highly taxed jurisdiction.”
For the most part, these would be considered employee-friendly changes which is not surprising, given the government of the day, said Gary Clarke, partner at Stikeman Elliott in Calgary and Vancouver.
The Canadian Law Institute did an exhaustive survey of the employment standards over the past four years, and it looked at other jurisdictions alongside representatives from organized labour, said Guignard.
“They were trying to figure out a way to make these changes in a way that was fair to both employees and employers, and provide flexibility in the workplace — not create any unnecessary costs or new burdens, but also protecting and keeping certainty to employees… and they came up with 71 consensus recommendations on that.”
But so far, the changes benefit employees, he said.
“There’s nothing in here that favours employers, and it doesn’t include any of this industry consensus report’s recommendations that would assist employers with some of the challenges that they are facing.”
This should not be an adversarial system, said Guignard.
“This is Canada in the 21st century. It’s not like we have a reputation for exploiting miners in chemical factories or something like that. Which, if you read this, that’s what you would assume is going on.”
The amendments add critical illness or injury leave, where an employee can take 36 weeks to care for a child and up to 16 weeks to care for an adult family member. A medical certificate is required.
There’s also a leave respecting domestic or sexual violence, with employees entitled to up to 10 days of unpaid leave, in units of one or more days or in one continuous period, and up to 15 weeks of unpaid leave.
Those leaves are consistent with what we’re seeing in other jurisdictions, said Clarke.
“In practice, a lot of employers don’t get too upset or concerned about the addition of protected unpaid leave. Because, yes, it can be a bit disruptive in the workplace, because they’ll lose their employee during that period of time. But... there’s no additional cost.”
There’s also alignment here with federal statutes and regulations, said Richard Truscott, Calgary-based vice-president for B.C. and Alberta at the Canadian Federation of Independent Business.
“On the ground, small businesses do these kinds of things every day in an informal, unofficial way. And putting this into regulations is fine.”
With some exceptions, youth under the age of 14 (instead of 12) will be prohibited from working, and children under 16 will be prohibited from working in “hazardous industries” or performing “hazardous work,” which will be further defined by regulation.
That change makes sense, said Truscott.
“We don’t want to prevent a 14- or 15-year-old kid from mowing lawns. But, at the same time, I think everybody has an interest in making sure that child labour is not an issue in British Columbia or in our country,” he said.
“We want to make sure that the employment rules stay flexible, to support small businesses, hiring young people and inexperienced workers. We don’t want, for instance, to raise the minimum wage too far, too fast, or change the employment rules to become a lot more restrictive. That will stop small businesses from doing the hiring for those first-time jobs.”
Better protection for children and youth makes sense — and many employers aren’t looking to hire a 12 year old. But the lack of clarity around what work can be done and required permissions is a challenge, said Guignard.
“The terms for light work have not been sufficiently defined,” he said. “If you’re a youth apprentice in a certain kind of work, you’ve been protected for not doing roofing, or something more dangerous, but if you’re apprenticing in jobs at age 14 or 15 years old, you could be caught up in this and find yourself in contravention of the employment standards, when you’re just doing the exact same thing teenagers have done for the last 40 years.”
On the labour relations front, any provision in a collective agreement that deals with issues such as overtime, hours of work, statutory holidays or entitlements upon termination of employment must meet or exceed the entitlements set out in the ESA. If not, the ESA entitlements will be deemed to be incorporated into the collective agreement.
“(Before), as long as you had something in the collective agreement, then you kind of checked the box. But now, they want to make sure that whatever you have in the collective agreement meets or exceeds the employment standard. And if it doesn’t, then the employment standards will apply,” said Clarke.
Keeping the secret ballot vote is much appreciated, said Guignard.
“That was something potentially terrifying… it’s not productive in those workplaces.”
However, the government also shortened the timeline for certification to five days, he said, “which is tough if there’s a corresponding curtailment on an employer’s rights to free speech.”
But the timeline for decertification is also now five days, “so they’re at least fair on either side of that,” said Guignard.
As for matching the standards, some employers need the flexibility, he said.
For example, if an employee and employer work out an arrangement around shifts that doesn’t technically meet the standard, and nobody’s feeling wronged in that environment, “now we have to meet potentially more stringent standards,” said Guignard.
However, most collective agreements would probably already meet or exceed the employment standards, he said.
The new rules eliminate the self-help kit as a required step before filing a complaint. Previously, employees were required (in most cases) to present the kit to their employers to attempt to resolve their disputes prior to being able to proceed with their complaint.
Instead, the director of the Employment Standards Branch must accept and investigate all complaints.
While the self-help kit process had good intentions, it was under-utilized, said Clarke.
“In many cases, the employers were getting the self-help kit from their employees, or typically former employees, and just ignoring them or nothing was happening — but you had to go through this process as a precondition to moving forward with a complaint,” he said. “Now, you’re making a direct complaint. And so the director will screen complaints, so there’ll be an intake process. And once they accept the complaint, then the director will investigate.”
It should make it easier for employees to have their cases heard, said Truscott.
“It will, at the same time, make it more easy for frivolous cases to proceed. And so there is that… downside to this issue. But we want to make sure people do have a way… if employees do feel that they’ve been mistreated, or they have a grievance about something, that there is an avenue to resolve that. And hopefully, what normally will happen is that it’s resolved inside the business, that the employee and the employer sit down and figure it out, like adults.”
But there’s more authority now given to the director to determine whether a case deserves to be heard or not, he said.
“It’s not going to affect a lot of employers — the ones that are offside will be impacted,” said Truscott.
“It also shows how important it is to make sure that policies are in place and written down and mutually understood by both the employer and the employee to make sure that everybody’s on the same page, right from the get-go. And if there’s any misunderstandings, they can refer back to the original discussions,” he said.
While there has not been a lot of negative feedback about these latest changes, there’s a second batch set to be introduced in the fall that will likely deal with contentious issues such as paid leave, said Truscott.
“It’s really important for the government to remember that what employers and employees really need is a flexible system,” he said. “And so I know the government’s impulse is to prescribe everything in regulation. But, the modern workplace does need flexibility for both employers and employees. And we want to make sure we don’t make the system so full of rules and regulations that it becomes overly difficult for employers to hire… and for workers to find jobs.”
There’s a clear ratcheting up of cost to doing business in the province, said Guignard.
“Add all these things together and then make more expensive changes to the Employments Standards Act, and it is going to become more and more difficult to do business in British Columbia,” he said.