Significant Changes Made to Employment Law and Minimum Wages in B.C.  

Context

A number of changes and amendments to B.C.’s labour laws came into effect a few days ago that may impact Canadian Franchise Association (CFA) members operating in the province. The NDP government in B.C. recently passed legislation to implement some of the most significant changes to the Employment Standards Act and Labour Relations Code in years. The two Bills both received Royal Assent on May 30, 2019 and are now in force.

• Bill 30, The Labour Relations Code Amendment Act, 2019
• Bill 8, Employment Standards Amendment Act

These changes to legislation come after two public consultations, which the CFA provided written comments to the government on the specific aspects of the consultation and the impacts the changes might have on the franchising community across B.C.

As with all changes in legislation, we urge our members to speak to their legal counsel to ensure you have a full understanding of the changes and how they will impact your business operating in BC. The summary below was drafted using materials prepared by a number of CFA’s legal service member firms.

Minimum wage increases in effect June 1

B.C.’s general hourly minimum wage will increase to $13.85 from $12.65 effective June 1, 2019. Liquor servers, resident caretakers, and live-in camp leaders will also receive minimum wage increases.

• General minimum wage will increase 9.5 per cent to $13.85 per hour, an increase of $1.20 per hour.
• Liquor server minimum wage will increase 11.4 per cent to $12.70 per hour, an increase of $1.30 per hour.
• Resident caretaker minimum wage, per month, will increase 9.5 per cent to $831.45 for those who manage nine to 60 units (+ $33.32/unit), or $2,832.11 for 61 or more units.
• Live-in camp leader minimum wage, per day, will increase 9.5 per cent to $110.87.

The minimum wage in B.C. will further rise to $14.60 on June 1st, 2020 and to at least $15.20 on June 1st, 2021.

Changes to the B.C. Labour Relations Code (Bill 30)

Bill 30, The Labour Relations Code Amendment Act, 2019, received Royal Assent on May 30, 2019 is now in force and could have an impact on CFA members doing business in B.C. The Bill follows a report of a Labour Relations Code Review Panel from August 2018. The panel’s mandate was to engage in consultations with stakeholders and make recommendations for updates to the Code. In its Report, the Panel made 29 recommendations for amendments to the Code. Bill 30 adopts nearly all the Report’s recommendations with some slight modifications.

Here is a summary of the changes that are being implemented under Bill 30:

New Restrictions on the Employer’s Right to Communicate
Previously, section 8 of the Labour Relations Code (the Code) provided that employers (and any persons) had the freedom to express views on any matter, including matters relating to an employer, a trade union, or the representation of employees by a trade union, provided that the employer did not use intimidation or coercion. Bill 30 repeals section 8 and substitutes a narrower right to “communicate to an employee a statement of fact or opinion reasonably held with respect to the employer's business.”

Protections on Consumer Leafleting are Codified
Bill 30 amends the definition of “picketing” – which is prohibited by the Code except where specifically permitted -  does not include lawful consumer leafleting that does not unduly restrict access to or egress from the place of business, operations or employment, or prevent employees from working at the place of employment. This is not a change in the law so to speak but brings the Code in line with existing law from the Supreme Court of Canada.

Faster Representation Votes
Bill 30 shortens the time period between the Labour Relations Board (the Board) receiving an application for certification and holding the representation vote under section 24 of the Code from 10 business days to five. An equivalent change is also proposed for decertification votes under section 33 of the Code.

Expansion of Remedial Certification
Bill 30 provides the Board with expanded authority under section 14 of the Code to order remedial certifications (i.e., without a vote in favour of certification) where the employer has committed an unfair labour practice during organizing and the Board considers that it is “just and equitable” to do so. Previously, a union seeking a remedial certification had to surpass a higher threshold by demonstrating that the union would likely have obtained the requisite support had it not been for the unfair labour practice.

Longer “Statutory Freeze” Periods
Previously, following the certification of a union, employers were prohibited under section 45 of the Code from increasing or decreasing wages or altering terms and conditions of employment for four months after the application for certification was granted, if a first collective agreement had not yet been reached. Bill 30 significantly extends this statutory freeze period from four months to 12 months.

Changes to Raiding Periods
Bill 30 amends section 19 of the Code to restrict union raiding to the seventh and eighth month of the third year in the term of a collective agreement and every year thereafter, if the term is for more than three years. For collective agreements with a term of three years or less, raiding may only occur during the final year of the term. In the construction industry, these raids may only occur in July and August (rather than the seventh and eighth month of the term), in order to account for the higher employment rates for construction workers in the summer. It is also noteworthy that, in cases of a successful raid, Bill 30 adds a new section 27.1 which allows the raiding union to apply to the Board to have an existing collective agreement with two or more years of term remaining cancelled by the Board.

Successorships for Contract Re-tendering
Bill 30 amends section 35 of the Code to expand the successorship provisions of the Code to apply to certain service contracts that have been re-tendered and bid on by new contractors, including building cleaning services, security services, bus transportation services, food services, and non-clinical services in the health sector. For the successorship provisions in the Code to apply, the contract for services must be for substantially the same services as were previously provided. Critically, unlike the other sections of Bill 30, which came into force on May 30, this amendment comes into force retroactively on the date of first reading (April 30).

Increased Fines
Bill 30 increases the fines for a failure to comply with orders of the Board from $1,000 to $5,000 for individuals, and from $10,000 to $50,000 for corporations.

Changes to the B.C. Employment Standards Act (Bill 8)

Bill 8, Employment Standards Amendment Act, received Royal Assent on May 30, 2019 is now in force. The Bill made some significant changes to the Employment Standards Act (“ESA”) for the first time in over 15 years. This is the first of what is expected to be a two-part amendment process to the ESA.

There are substantive and administrative changes being made to the B.C. ESA. For employers, the most significant amendments being proposed are: (1) a requirement that, essentially, all of the main components of a collective agreement must “meet or exceed” the corresponding Parts of the ESA; (2) the addition of further unpaid leaves; and (3) the extension of the period for which employees can recover wages payable.

Here is a summary of the changes that are being implemented under Bill 8:

Collective Agreements will be required to meet or exceed Employment Standards Act Entitlements

Previously, the Employment Standards Act (the ESA) provided that many of its requirements, including hours of work and overtime, statutory holidays, vacation time and pay, and seniority retention, recall and individual termination entitlements, did not apply to collective agreements provided that the collective agreement had any provision dealing with these subjects. Under Bill 8, collective agreements only replace these sections of the ESA if the collective agreement provisions dealing with these subjects “meet or exceed the requirements” of the ESA. Bill 8 delays the implementation of this amendment until the expiry of the current collective agreement in force; however, compliance with these ESA requirements will need to be dealt with during subsequent rounds of collective bargaining. 

New Unpaid Leaves of Absence
Under Bill 8, employees may take an unpaid critical illness or injury leave of up to 36 weeks if an immediate family member under 19 years of age is at risk of death, and up to 16 weeks for an immediate family member who is 19 or older.

Bill 8 also provides for a leave respecting domestic or sexual violence of up to 10 days, taken in units of one or more days, and an additional period of up to 15 consecutive weeks.   

Terminations during a Resignation Period

Bill 8 amends section 63 of the ESA to clarify that if an employee with more than three months of service gives notice of resignation and the employer subsequently ends the employee’s employment during that notice period, the employee is entitled to the lesser of the wages the employee would have earned during the resignation notice they provided, or the pay in lieu of notice of termination the employee is entitled to under the ESA. 

Increased Wage Recovery Period
Significantly, Bill 8 extends the wage claim period from the current six months to 12 months following the employee’s termination date or the date a complaint is filed. The amendments also leave the door open for the Director of Employment Standards to prescribe circumstances in which the wage recovery period may be extended to two years.

Restrictions on Gratuities
Bill 8 prohibits employers from withholding gratuities, making deductions from gratuities, or requiring gratuities to be returned to the employer. Despite this, Bill 8 clarifies that employers may withhold gratuities as part of a tip pool that redistributes gratuities to employees.

Extended Record Keeping
Bill 8 requires employers to retain certain records, including payroll records, averaging agreements, and agreements about special workplace clothing and statutory holidays, for a period of four years, an increase from the previous two years. 

Expanded Authority for the Director of Employment Standards
While the Director of Employment Standards already had the authority to conduct an investigation absent a complaint, Bill 8 establishes that the Director may at any time and for any reason conduct an investigation to ensure compliance with the ESA, reflecting a governmental emphasis on increased enforcement of the provisions of the ESA.  

For more information please contact David Black, Director of Government Relations and Public Policy at dblack@cfa.ca.