Employers across British Columbia are adjusting to the new amendments to both the Labour Relations Code and Employment Standards Act, which were quickly pushed through the legislature and received Royal Assent on May 30, 2019. Many of the amendments are already in effect and having a significant operational impact on the province’s businesses.
Under the amended Labour Relations Code, the following changes are now in force:
- Significant restrictions on employer speech during union organizing campaigns;
- Reduced timeframe for certification votes, down to five business days from date of application;
- Lowering the bar for “remedial certification” (i.e., certification without a vote) when an unfair labour practice has been committed;
- Extending the “statutory freeze” (during which an employer is very restricted from altering terms and conditions of employment) following certification, from four to twelve months;
- Making it easier for unions to have first collective agreements imposed by arbitration;
- Imposing union successorship (i.e. the transfer of union certification and existing collective agreements) upon the retendering of contracts in the health, cleaning, security, food services and bus transportation sectors, retroactive to April 30, 2019;
- Imposing new timelines and decision requirements on the expedited arbitration process under the Code, which significantly erode a party’s right to a fair hearing and a reasoned decision; and
- Education has been eliminated as an “essential service,” thus removing certain restrictions regarding the ability of unionized workers in the public education sector to go on strike.
Under the amended Employment Standards Act, the following changes are now in force:
- Statutory provisions relating to hours of work or overtime, statutory holidays, annual vacation and vacation pay, termination of employment, and special clothing now apply to unionized workplaces, and must be met or exceeded in all future collective agreements;
- The ability of an employer to deduct money from an employee’s wages to pay off debts owed to the employer has been further restricted;
- Employers are prohibited from withholding, deducting from, or requiring an employee to return, any gratuities they receive;
- Two new job protected unpaid leave periods have been created:
- Critical illness or injury leave, which is an unpaid leave an employee may use to provide care or support to a family member whose life is at risk as a result of an illness or injury (up to 36 weeks if the family member is a minor or up to 16 weeks if the family member is an adult); and
- Leave respecting domestic or sexual violence, which is unpaid leave an employee may use for a variety of purposes relating to the experience of domestic or sexual violence, including seeking medical attention, obtaining counselling, social services, or assistance from law enforcement, and temporarily or permanently moving (employees have an entitlement of up to 17 weeks of such leave per calendar year, subject to certain restrictions as to how such leave may be scheduled); and
- Record-keeping obligations have been lengthened to four years following the date of the record’s creation.
In addition, certain amendments to the Employment Standards Act will come into force on a later date set by regulation, including the following:
- Temporary help agencies will be required to be licensed under the Act, and if an employer engages the services of an unlicensed agency, that employer will be deemed to be the employer of each employee who performs work on its behalf for all purposes under the Act; and
- Subject to limited exceptions, youth under the age of 14 will be prohibited from working generally, and children under the age of 16 will be prohibited from working in “hazardous industries” and from performing “hazardous work”, which will be further defined by regulation.
There is no question that these amendments have significantly changed the legislative framework in which both unionized and non-unionized employers operate in BC. As many of these changes are already in force, employers should review workplace policies, procedures and employment contracts as soon as possible in order to ensure their continued compliance with the Act. Employers with a unionized workforce may wish to consider the impact of the new minimum requirements on collective bargaining in the future. Whether unionized or not, employers may wish to educate managers and supervisors (or update previous training) on what constitutes an unfair labour practice and the potential impact of such complaints.
Information provided by Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.