For the first time in over two decades, an independent review of the Employment Standards Act, R.S.B.C. 1996, c. 113 (the "Act"), is underway. The review is being conducted by the British Columbia Law Institute's Employment Standards Act Reform Project (the "Project"). The Ministry of Labour is a participant observer in the Project. Given the ministry's involvement, it is safe to assume that some of the Project's final recommendations may find their way into a legislative amendment before the next election.
The Project is divided into three phases:
- a research and deliberation phase;
- a consultation phase; and,
- a drafting phase.
At the end of the first phase, the Project released the Consultation Paper on the Employment Standards Act (the "Consultation Paper"). The Consultation Paper contains a number of recommendations for changes to the Act.
Below we highlight some of the more significant "tentative" recommendations made in the Consultation Paper (for the complete list of tentative recommendations, see pp. 313-330 of the Consultation Paper). The recommendations we have selected are among those that represent the consensus of the Project's members and therefore are more likely to be adopted as final recommendations.
Selected "Tentative" Recommendations
The Project endorsed the following recommendations:
- reviewing the seemingly arbitrary categories of employment that are excluded from the protection of the Act and shifting towards a more principled-approach to exclusions;
- increasing flexibility of work hours and arrangements by:
- permitting different types of standard work weeks (e.g. four 10-hour days); and,
- relaxing averaging agreement requirements to encourage use.
- tightening eligibility for statutory holiday pay;
- allowing employees to decline requests to work outside of their regularly scheduled hours in certain circumstances;
- clarifying the meal break provision to only allow an employer to interrupt meal breaks in emergency circumstances;
- indexing increases to the minimum wage at regular, fixed intervals;
- adopting the Ontario model that prevents the employer and managerial employees from participating in a tip pool unless they perform work of the same nature as the employees sharing in the pool;
- broadening the definition of "immediate family" to bring it in line with modern families;
- incorporating an unpaid sick (illness or injury) leave into the existing family responsibility leave and increasing the total days to 7;
- establishing guidelines for medical certificates in consultation with health professions and representatives from employers, and both organized and unorganized labour;
- extending the period available to claim wages from 6 months to 12 months from the date of the complaint; and,
- importing the model of workers' and employers' advisers from the Workers' Compensation Act to aid unrepresented parties in appeals to the Employment Standards Tribunal.
The Project is currently nearing the end of the consultation phase. The Project is soliciting feedback from the public until August 31, 2018. If you would like to weigh in on these or other recommendations from the Consultation Paper, you can participate in the Employment Standards Act Reform Project Consultation Survey.
The public response to the Consultation Paper will influence the recommendations put forward by the Project in its final report.
Nicole practises in all areas of labour and employment law, including advising clients on wrongful dismissal, labour relations, human rights and privacy issues.
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Jason is an associate in the firm’s Labour, Employment and Human Rights group. Jason advises and represents clients on a variety of labour and employment issues, including grievance arbitrations and mediations, human rights ...
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