More job-protected leave among changes
The Spring Session of the B.C. Legislature ended on May 30, 2019, and both the Employment Standards Amendment Act and Labour Relations Code Amendment Act were proclaimed into law on that day. These two acts represent the most significant changes in two decades to employment and labour legislation and all B.C. employers should be aware of the impact on their businesses.
Labour Relations Code amended
The Labour Relations Code Amendment Act, 2019 (Bill 30) received Royal Assent on May 30, 2019, so Bill 30’s amendments to the Labour Relations Code are now in force.
The majority of Bill 30 was passed as it was originally tabled. 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 other industries in B.C.
These raiding periods occur during the final year if a collective agreement term is for a term of three years or less, and during the 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 impact 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 the following:
(a) Building cleaning services
(b) Security services
(c) Bus transportation services
(d) Food services
(e) Non-clinical services provided in the health sector
This provision will apply retroactively to services contracted or re-tendered on or after April 30, 2019.
Certification processes
Going forward, certification votes will be required to 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 only extend 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 organizing drives.
The “statutory freeze” of rates of pay and other terms and conditions of employment after new certifications are granted is extended from 4 months to 12 months, or when a first collective agreement is reached, whichever is earlier.
Expedited arbitration processes
Applications for expedited arbitration under s. 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 only grant such re-openers in “exceptional” circumstance, it remains to be seen what those circumstances will entail.
Filing collective agreements and ancillary documents with the Board
Each party to a collective agreement is required to file a copy of the agreement with the Board. As of May 30, 2019, the Board may decline to consider a collective agreement or ancillary document that a party wishes to rely on (i.e. Memorandums of Agreement or Understanding, adjustment plan agreements reached under s. 54), if 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 May 30, 2019, so Bill 8’s amendments to the Employment Standards Act, (the ESA) are now in force.
Virtually all of Bill 8 was passed as it was originally tabled. The only new addition to the final version of Bill 8 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 dependent adult person under their care, experience domestic or sexual violence, and wish to request a leave for one or more of the following purposes:
(a) 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
(b) to obtain for the employee or eligible person victim services or other social services relating to domestic or sexual violence
(c) 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
(d) to temporarily or permanently relocate the employee or eligible person or both the employee and eligible person
(e) 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
(f) any prescribed purpose.
Employers should be particularly aware of the following amendments which could impact them immediately or in the near future:
- Collective Agreements. Any collective agreement that is made or renewed after May 30, 2019 has to meet or exceed the requirements in the ESA 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 Employment Standards Branch or settled as of May 30, 2019.
- Unpaid Leaves. 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 ESA.
- 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.
Kevin P. O'Neill and David T. McDonald are partners with Fasken Martineau DuMoulin LLP in Vancouver, practicing labour, employment, and human rights law. Kevin can reached at (604) 631-3147 or [email protected]. David can be reached at (604) 631-4751 or [email protected]. Andrew Woodhouse and Kristen Woo are associates with Fasken Martineau DuMoulin in Vancouver, also practicing labour, employment, and human rights law. Andrew can be reached at (604) 631-4971 or [email protected]. Kristen can be reached at (604) 631-3108 or [email protected].
