The spring session of the British Columbia legislature ended on 30 May 2019 and both the Employment Standards Amendment Act and the Labour Relations Code Amendment Act were proclaimed into law. These two acts represent the most significant changes to employment and labour legislation in two decades and all British Columbia employers should be aware of the impact on their businesses.
The Labour Relations Code Amendment Act 2019 (Bill 30) received royal assent on 30 May 2019 and its amendments to the Labour Relations Code(1) are now in force.(2)
The majority of Bill 30 was passed as it was originally drafted. However, a single amendment was proposed and passed by the Liberal and Green parties.
Section 6 was amended to eliminate a proposed raiding period during each year of a collective agreement in the construction industry. The code will instead provide substantially the same raiding periods in the construction industry as it does in other industries in British Columbia.
These raiding periods occur during the:
- final year if a collective agreement term is for three years or less; or
- third year and every year thereafter if a collective agreement term is for three years or more.
Interestingly, it does not appear that raiding will be permitted after a collective agreement expires, if the expired collective agreement was for a term of three years or less. Conversely, if an expired collective agreement was for more than three years, raiding will be permitted during any continuation of the collective agreement.
Employers should be particularly aware of the following amendments which could affect them immediately.
Successorship between contractors
Successorship may occur between contractors, when contracted services are re-tendered and "substantially similar services continue to be performed, in whole or in part, under the direction of another contractor". Currently this provision is limited to:
- building cleaning services;
- security services;
- bus transport services;
- food services; and
- non-clinical services provided in the health sector.
This provision applies retroactively to services contracted or re-tendered on or after 30 April 2019.
Certification processes
Going forward, certification votes must be conducted within five business days after applications are made. Votes must be conducted in person, unless exceptional circumstances exist or all parties agree otherwise.
'Employer speech' will no longer be generally immune from the unfair labour practice provisions of the code, and 'protected speech' will extend only to "statements of fact or opinion reasonably held with aspect to the employer's business". Communications falling outside of this description may provide a basis for an unfair labour practice complaint if the communication interferes with the administration, formation or selection of a union.
Employers are advised to assess any communications or communication plans during any current or anticipated organising drives.
The statutory freeze of rates of pay and other terms and conditions of employment after new certifications are granted is extended from four months to 12 months, or when a first collective agreement is reached – whichever is earlier.
Expedited arbitration processes
Applications for expedited arbitration under Section 104 of the code must be made within 15 days of the conclusion of the grievance process. Mandatory case management conferences must occur within seven days of the board's appointment of an arbitrator and hearings must be concluded within 90 days of the application.
Collective agreement re-opener
After a successful raid, unions inheriting collective agreements with two or more years remaining may now apply to the board to have the agreement terminated and collective bargaining commenced.
Although it is expected that the board will grant such re-openers only in exceptional circumstances, it remains to be seen what those circumstances will entail.
Filing collective agreements and ancillary documents
Each party to a collective agreement is required to file a copy of the agreement with the board. As of 30 May 2019, the board can decline to consider a collective agreement or ancillary document that a party wishes to rely on (ie, memoranda of agreement or understanding or adjustment plan agreements reached under Section 54) if it is not properly filed with the board.
Employers and unions are advised to be diligent in ensuring that collective agreements, renewals and ancillary documents are properly filed.
Employment Standards Act amended
The Employment Standards Amendment Act 2019 (Bill 8) received royal assent on 30 May 2019 and its amendments to the Employment Standards Act(3) are now in force (for further details please see "Bill 8: major changes to Employment Standards Act introduced").
Virtually all of Bill 8 was passed as it was originally drafted. The only new addition to the final version was a leave for victims of sexual violence.
Employees are now entitled to receive a job-protected unpaid leave of up to 10 days and 15 weeks if they or an eligible person, such as their children or a dependant adult or person under their care, experience domestic or sexual violence, and wish to request a leave for one or more of the following purposes:
- to seek medical attention for the employee or eligible person in respect of a physical or psychological injury or disability caused by the domestic or sexual violence;
- to obtain for the employee or eligible person victim services or other social services relating to domestic or sexual violence;
- to obtain for the employee or eligible person psychological or other professional counselling services in respect of a psychological or emotional condition caused by the domestic or sexual violence;
- to temporarily or permanently relocate the employee or eligible person or both the employee and eligible person;
- to seek legal or law enforcement assistance for the employee or eligible person, including preparing for or participating in any civil or criminal legal proceeding related to the domestic or sexual violence; or
- any prescribed purpose.
Employers should be particularly aware of the following amendments which could affect them immediately or in the near future.
Collective agreements Any collective agreement that is made or renewed after 30 May 2019 has to meet or exceed the requirements in the Employment Standards Act regarding:
- special clothing;
- hours of work and overtime;
- statutory holidays;
- annual vacation and vacation pay; and
- seniority retention, recall, termination and layoff.
Employment standards complaints
The 12-month wage recovery period now applies to all employment standards complaints delivered to the employment standards branch that have not been determined by the branch or settled as of 30 May 2019.
Unpaid leave
In addition to the new domestic or sexual violence leave, critical illness or injury leave is now extended to up to 36 weeks to care for a critically ill child and up to 16 weeks to care for a critically ill adult.
Retention of payroll records
Employers are now required to retain payroll records for up to four years after the date on which the payroll records were created. The former requirement was to retain payroll records for two years after the employment terminates.
Information about employee rights
An employer must make available or provide to each employee – in a form provided or approved by the director – information about the rights of the employee under the Employment Standards Act.
Gratuities
Employers are prohibited from withholding tips or gratuities, deducting amounts from tips or requiring tips to be turned over to them, unless for the purpose of tip pooling among eligible employees.
Endnotes
(2) Further information is available here.
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