For provincially regulated, non-unionized tourism employers, the Employment Standards Act of British Columbia (“ESA” or the “Act”) is probably the most important and frequently referenced piece of employment legislation. The purpose of this legislation is to provide the minimum standards, legal rights and responsibilities of both employers and employees.
Update: Effective June 1, 2019, the BC Government increased the general minimum wage to $13.85 and the liquor server minimum wage to $12.70. Further increases are expected every June until 2021. As of May 1, 2011, the first job/training wage has been removed. For more information, please visit our Minimum Wage article.
It is important for employers to become familiar with the provisions of the Act and to understand how these provisions are interpreted and applied by the Employment Standards Branch, which is the administrative body charged with dealing with complaints under the Act.
Section 2 of the ESA sets out the purposes of the Act as follows:
- to ensure that employees in BC receive at least basic standards of compensation and conditions of employment;
- to promote the fair treatment of employees and employers;
- to encourage open communication between employers and employees;
- to provide fair and efficient procedures for resolving disputes over the application and interpretation of this Act;
- to foster the development of a productive and efficient labour force that can contribute fully to the prosperity of British Columbia;
- to contribute in assisting employees to meet work and family responsibilities.
You should keep these purposes in mind as an aid to resolving any ambiguity that may arise in the interpretation and application of the Act.
The Act covers a variety of work-related issues, including minimum pay, hours of work, time off, notice and severance pay upon termination, and other basic terms and conditions of employment.
The Act is meant to provide minimum employment standards for employees. Accordingly, the parties to an employment contract are prohibited from waiving the requirements of the Act; these requirements are mandatory as a minimum guideline. This helps ensure that employees are not coerced by employers into agreeing to inferior standards of employment. It is important to note, however, that this prohibition does not apply to employees covered by a collective agreement, an averaging agreement or where a variance has been granted by the Director of Employment Standards.
The administrative structure under which the Act is governed is often the source of some confusion. Accordingly, it is also important to distinguish between the Employment Standards Branch, the Director of Employment Standards and the Employment Standards Tribunal.
The ESA also sets out a number of definitions and exclusions that can be confusing. These relate to questions as to who is covered by the Act and the application of the Act to employees covered by a collective agreement, as well as layoff and group termination requirements. In addition, employers should be familiar with the complaint and appeal processes, including the enforcement provisions in the ESA.
The Employment Standards Branch website and local offices offer a number of resources for employers to obtain assistance with compliance issues, interpreting the Act, resolving complaints and preventing complaints altogether. Please visit the Employment Standards Branch or call the Employment Standards Branch central line 1-800-663-3316 for more valuable information.
For greater detail, please view the full text of the Employment Standards Act.
Information provided by Ryan Anderson, an employment lawyer with 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.