Non-Negotiable Elements of an Employment Agreement

British Columbia Employment Standards Act: An Overview 

Every company with its own employees must be aware of the legislation that governs the minimum requirements of employment in the province. That legislation is the British Columbia Employment Standards Act (the “Act”). The Act and its Regulation set the rules on compensation, hours of work, time off, notice, severance pay, and other topics in most workplaces in British Columbia. 

Purposes Of The Act 

Section 2 of the Act sets out the purposes of the Act as follows:

1. to ensure that employees in British Columbia receive at least basic standards of compensation and conditions of employment;
2. to promote the fair treatment of employees and employers;
3. to encourage open communication between employers and employees;
4. to provide fair and efficient procedures for resolving disputes over the application and interpretation of the Act;
5. to foster the development of a productive and efficient labour force that can contribute fully to the prosperity of British Columbia; and
6. to contribute in assisting employees to meet work and family responsibilities.

As noted, the Act and Regulation set the minimum requirements for employment in the province. Employers are free to offer greater benefits and rights to their employees, but they are prohibited from waiving the minimum requirements. This helps ensure that employees are not coerced by employers into agreeing to inferior employment standards. 

Informing Employees And Adhering To The Minimum Standards 

Employers should be aware of a little-known requirement under section 6 of the Act. That section requires employers to make available or provide to each employee information about the rights of the employees under the Act in a form provided or approved by the Director of Employment Standards. Employers can meet this requirement by posting the approved informational document in the workplace, and providing it directly to employees when they are hired. 

The minimum standards are not negotiable, so it is important to be wary of voluntary agreements between employees and employers that do not meet those minimum standards. It is never sufficient to say, “But we had an agreement!”  Such agreements are unenforceable and can result in significant liabilities in some areas – for example, overtime that is not recorded or not properly banked, or “use it or lose it” vacation policies. Not only will non-compliant agreements give rise to retroactive liabilities, but employers may also face fines for breaching the minimums standards. 

Exemptions 

Certain occupations are not covered under the Act. For example, independent contractors and professionals that are regulated by other provincial regulations (e.g., lawyers, doctors, accountants, architects, engineers, and veterinarians) are exempt from the Act. In addition, certain classes of employees (e.g., truck drivers, taxi drivers, and farm workers) and employees covered by a collective agreement are exempt from specific sections of the Act. It is important that employers familiarize themselves with special rules that apply to these types of employees.

Also, note that managers are excluded from the hours of work and overtime provisions of the Act. The term “manager” is defined under the Act as (a) a person whose principal employment duties consist of supervising and/or directing human or other resources, or (b) a person employed in an executive capacity.

Watching Out For Amendments 

Employers should keep track of any amendments to the Act and Regulation. A good resource is the Government of British Columbia’s online page Employment Standards Act and Regulation amendments which lists any updates to the Act and Regulation from May 19, 2021 onwards. Examples of previous, and forthcoming updates are as follows:

• The Act used to provide those employees covered by the Act only with 3 unpaid personal illness or injury days a year. The British Columbia Government made changes to the Act such that since January 1, 2022, employees with 90 consecutive days of employment with an employer are entitled to 5 days paid leave per calendar year, in addition to the existing 3-day unpaid leave entitlement. Employers are permitted to ask an employee for sufficient proof of illness or injury, which an employee must provide as soon as practicable.
  
  
• On April 5, 2023, British Columbia Labour Minister, Harry Bains, announced that effective June 1, 2023, the general minimum wage in British Columbia will increase by $1.10, elevating the minimum wage from $15.65 an hour to $16.75. The historical minimum wage in British Columbia since 2018 is as follows (a 32% increase over the past 5 years):
  
  
• • June 1, 2023 – $16.75 per hour
  • June 1, 2022 – $15.65 per hour
  • June 1, 2021 – $15.20 per hour
  • June 1, 2020 – $14.60 per hour
  • June 1, 2019 – $13.85 per hour
  • June 1, 2018 – $12.65 per hour

The following industry-specific wage increases in British Columbia will also take effect on June 1, 2023:

• • Liquor servers must be paid a minimum wage of $16.75 per hour for hours worked, in addition to any tips or gratuities they receive.
  • Live-in-home support workers must be paid a minimum daily wage of $124.73 for each day or part day worked, up from $116.68 per day.
  • Live-in camp leaders must be paid a minimum daily wage of $133.69 for each day or part-day worked, up from $125.06 per day.
  • Resident caretakers must be paid $1002.53 per month plus $40.17 for each suite for a building containing 9 to 60 units; and $3414.85 per month for a building containing 61 or more units. The noted amounts may be pro-rated where a resident caretaker works less than a full month.

Interpretive Guidance 

Employers and employees can find more information about the minimum statutory requirements in the Guide to the Act and Regulation, which provides very helpful interpretive guidance and practical examples concerning the application of the Act and Regulation.