Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS ACT - PART 1 - INTRODUCTORY PROVISIONS

ESA Section 3 – Scope of this Act


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section specifies what the director considers when deciding whether the Employment Standards Act applies to an employee, and how the Act will be applied and interpreted for employees covered by a collective agreement. 


Text of Legislation

3 (1) Subject to this section, this Act applies to all employees other than those excluded by regulation.

(2) If a collective agreement contains any provision respecting a matter set out in Column 1 of the following table, the Part or provision of this Act specified opposite that matter in Column 2 does not apply in respect of employees covered by the collective agreement

Column 1
Matter

Column 2
Part or Provision

Hours of work or overtime

Part 4

Statutory holidays

Part 5

Annual vacation or vacation pay

Part 7

Seniority retention, recall, termination of employment or layoff

s.63

 

(3) If a collective agreement contains no provision respecting a matter set out in Column 1 of the following table, the Part or provision of this Act specified opposite that matter in Column 2 is deemed to be incorporated in the collective agreement as part of its terms:

Column 1
Matter

Column 2
Part or Provision

Hours of work or overtime

Part 4
except s.37

Statutory holidays

Part 5

Annual vacation or vacation pay

Part 7

Seniority retention, recall, termination of employment or layoff

s.63

 

(4) If a collective agreement contains any provision respecting a matter set out in one of the following specified provisions of this Act, that specified provision of this Act does not apply in respect of employees covered by the collective agreement:

Section 17 [paydays];

Section 18 (1) [payment of wages when employer terminates];

Section 18 (2) [payment of wages when employee terminates];

Section 20 [how wages are paid];

Section 22 [assignment of wages];

Section 23 [employer's duty to make assigned payments];

Section 24 [how an assignment is cancelled];

Section 25 (1) or (2) [special clothing];

Section 26 [payments by employer to funds, insurers or others];

Section 27 [wage statements];

Section 28 (1) [content of payroll records];

Section 28 (2) [payroll record requirements].

(5) If a collective agreement contains no provision respecting a matter set out in a provision specified in s.3(4), the specified provision of this Act is deemed to be incorporated in the collective agreement as part of its terms.

(6) Parts 10, 11 and 13 of this Act do not apply in relation to the enforcement of the following provisions of this Act in respect of an employee covered by a collective agreement:

Section 9 [employment of children];

Section 10 [no charge for hiring or providing information];

Section 16 [employers required to pay minimum wage];

Section 21 [deductions];

Part 6 [leaves and jury duty];

Section 64 [group terminations];

Section 65 [exceptions to section 64];

Section 67 [rules about notice of termination];

Section 68 [rules about payments on termination].

(7) If a dispute arises respecting the application, interpretation or operation of

(a) a Part or provision of this Act deemed by Subsection (3) or (5) to be incorporated in a collective agreement, or

(b) a provision specified in Subsection (6),

the grievance procedure contained in the collective agreement or, if applicable, deemed to be contained in the collective agreement under section 84 (3) of the Labour Relations Code, applies for the purposes of resolving the dispute.

(8) Despite s.3(6), if an arbitration board makes a decision on the merits of a matter in dispute referred to in s.3(7) and the decision is in respect of wages, the arbitration board may refer the decision to the director for the purpose of collecting the wages and, for that purpose, the director may collect the wages under ss.87 to 97 and 99 as if the decision of the arbitration board were an order of the tribunal.

(9) In s.3(8), "arbitration board" has the same meaning as in Part 8 of the Labour Relations Code.


Policy Interpretation

Subsection (1)

The Act applies to all employees within provincial jurisdiction regardless of status (casual, probationary, temporary) or hours worked (full time, part time). If a person is not an employee within the meaning of the Act, the director has no jurisdiction.

The Act applies to employees, not to independent contractors. The director, in considering whether a worker is an employee under this Act, will apply the definition of “employee” set out in section 1 of the Act. For further discussion on employee/contractor, see the definition of “employee”.

  • Is the person excluded from the provisions of the Act under the Employment Standards Regulation or other statute?

Part 7 of the Regulation wholly or partly excludes various employees, occupations and professions from coverage under the Act. For example, many professionals, such as doctors, lawyers, architects, and others whose professions are regulated by other provincial legislation, are not covered.

Certain occupations such as truck drivers, oil and gas workers, silviculture workers, farm workers and taxi drivers, among others, are excluded from certain sections of the Act which have been replaced by regulations specific to those sectors.

Other persons, such as students, sitters, some newspaper carriers and persons in government-sponsored work programs, may be excluded under certain conditions.

 Some occupations, or certain persons in particular situations, are excluded by another provincial statute. For example, the Correction Act excludes incarcerated inmates and young offenders who participate in a work program inside or outside of a correction centre or a youth custody centre from the provisions of the Act.

  • Is the person excluded because the work performed falls under the jurisdiction of the federal government?

Employees whose work falls under the jurisdiction of the federal government are outside the jurisdiction of the Act.

The Supreme Court of Canada has the final authority to arbitrate jurisdictional disputes.

Section 91 of the Constitution Act sets out areas of exclusive federal jurisdiction, which include:

  • Government of Canada, its Crown corporations, and Armed Forces;
  • interprovincial or international highway transport systems (transport companies making occasional trips out of province would normally be considered to be under provincial jurisdiction);
  • interprovincial or international railways ;
  • interprovincial or international telephone and cable systems, ferries, canals, tunnels, bridges, and pipeline systems;
  • interprovincial or international shipping and related services, such as stevedoring;
  • radio and television broadcasting, including cablevision;
  • air transport and the operation of aircraft and aerodromes, including passenger and freight, as well as charter flying and pilot training (but not stores/shops at airports);
  • banks (but not credit unions);
  • uranium mining and processing (all other mining is under provincial jurisdiction);
  • operation of grain elevators, flour and feed mills, feed warehouses, and seed cleaning mills;
  • foreign nationals employed by consular and diplomatic offices, which are subject to international law and practice; and
  • Aboriginal treaty rights, culture or status.

In employment standards matters, provincial jurisdiction is not lost because an enterprise engages the interests of aboriginal groups, or because a province attempts to apply its laws in a manner sensitive to the interests of First Nations people.

For further information on federal jurisdiction, contact Labour Programs at: http://www.labour.gc.ca/eng/home.shtml 

  • Does the person work outside of the Province?

In order for the Act to apply, there must be a sufficient connection between employment obligations and the province. To determine whether or not there is an entitlement to protection of the Act for persons employed by a British Columbia employer to perform work outside of the province, the following would be taken into consideration:

Those individuals hired and resident in British Columbia, who are sent to work outside of the province for specific periods of time would be covered by the Act provided that they have also worked for the employer in the province, or return here and continue to work for the same employer. However, if the work performed in British Columbia is incidental to the total length and nature of the employment contract then the Act may not apply.

An employee hired in British Columbia on a contract of employment for services to be performed solely out of the province is not covered by the Act. There is no provision in the Act that would suggest it is intended to apply to employment contracts that are performed entirely in another jurisdiction.

An employee who resides in British Columbia, is sent out of the province to attend training and then returns to British Columbia to work is covered by the Act.

Individuals who work and reside in another jurisdiction but may, on occasion, perform work of a limited duration in British Columbia are not covered.

Subsection (2) & (3)

  • Is a person’s employment covered by a collective agreement?

If a collective agreement contains any provision respecting the following matters, the corresponding parts of the Act do not apply:

  • Hours of work and overtime – Part 4 of the Act does not apply;
  • Statutory holidays – Part 5 of the Act does not apply;
  • Annual vacations – Part 7 of the Act does not apply;
  • Seniority retention, recall, termination or layoff – Section 63 of the Act, (liability resulting from length of service), does not apply.

If a collective agreement does not contain any provision relating to one of these subject areas, then the corresponding part of the Act as specified above, except s.37, is deemed to be incorporated into the collective agreement.

Any disputes regarding the application, interpretation, or operation of a Part or provision of the Act deemed by s.3(3) to be incorporated in a collective agreement must be resolved under the grievance procedures in the collective agreement. (See s.3(7) below)

Example

An employee covered by a collective agreement contacts the Employment Standards Branch because he was not paid vacation pay. The director does not have jurisdiction over his claim and he would be referred to his union.

Subsection (4) & (5)

If a collective agreement contains any provision relating to a matter set out in one of the following specified provisions of the Act, then the specified provisions of this Act do not apply:

  • s. 17 - paydays
  • s. 18 (1) payment of wages when employer terminates
  • s. 18 (2) payment of wages when employee terminates
  • s. 20 - how wages are paid
  • s. 22 - assignment of wages
  • s. 23 - duty to make assigned payments
  • s. 24 - how an assignment is cancelled
  • s. 25 (1) or (2) - special clothing
  • s. 26 - payments by employer to funds, insurers or others
  • s. 27 wage statements
  • s. 28 (1) - content of payroll records
  • s. 28 (2) - payroll records requirements

If a collective agreement contains any provision relating specifically to the above sections of the Act, then those provisions apply, whether the provision provides for a greater or lesser benefit than the Act.

If the collective agreement does not contain a provision relating specifically to the above sections of the Act, the equivalent specific section of the Act is deemed to be incorporated into the collective agreement.

Example

A collective agreement contains a provision that allows monthly paydays. Although monthly paydays are not permitted under s.17 of the Act, the Act does not have jurisdiction since paydays are specifically addressed in the collective agreement.

However, if the collective agreement contained no provision relating to paydays, s.17 of the Act is deemed to be incorporated into the collective agreement.

Any disputes regarding the application, interpretation, or operation of a provision of the Act deemed by s.3(5) to be incorporated in a collective agreement must be resolved under the grievance procedures in the collective agreement. (See Subsection (7) below)

Subsection (6)

Under this subsection parties to a collective agreement are prohibited from giving up any of the employment protections provided in Part 6 of the Act (Leaves and Jury Duty). Employers and unions are required to negotiate terms and conditions that include all the provisions of Part 6. If a collective agreement does not contain all of the provisions of Part 6 then that Part is deemed to be incorporated in the collective agreement.

Parties to a collective agreement may not negotiate a lower standard than those contained in the following sections of the Act:

  • s. 9 – employment of children
  • s. 10 – no charge for hiring or providing information
  • s. 16 – employers required to pay minimum wage
  • s. 21 – deductions
  • s. 64– group termination
  • s. 65—exceptions to section 64
  • s. 67 – rules about notice of termination
  • s. 68 – rules about payment on termination

Where provisions in a collective agreement do not meet the standards set out in Part 6 or any of the above referenced sections of the Act, the related provisions under the Act are deemed to be incorporated in the collective agreement.

The enforcement, collection, and appeal provisions of the Act, specifically Parts 10, 11, and 13, do not apply to the enforcement of any provision of the Act specified in this subsection.

Any disputes regarding the application, interpretation, or operation of a provision of the Act deemed by s.3(6) to be incorporated into a collective agreement must be resolved under the grievance procedures in the collective agreement.

Subsection (7)

The director does not have jurisdiction to examine the terms of a collective agreement and decide if a provision of the Act is deemed to be incorporated. Resolution of any dispute regarding the application, interpretation or operation of any Part or provision(s) of the Act deemed to be incorporated into a collective agreement under ss.3(3) or (5) or specified under (6) is through the grievance procedure in the collective agreement, not though the enforcement provisions of the Act. The director does not have jurisdiction to decide disputes regarding a matter relating to a provision of the Act that has been deemed to be included in a collective agreement.

Subsection (8)

If an arbitration board decides that a Part or provision of the Act has been incorporated into a collective agreement, and makes a decision in respect of wages, the arbitration board may refer the matter to the director for collection. The amount of wages owed must be clearly set out in the award.

The director, in deciding whether to use his statutory enforcement powers to collect the wages owed in the arbitration decision, will determine whether the following statutory preconditions for allowing enforcement under section 3(8) exist:

  • the arbitration award is a decision on the merits of a matter in dispute referred to in section 3(7); and
  • the decision is in respect of wages.

If the preconditions are met, the director may collect the wages under section 87 to 97 and 99 of the Act as if the decision were an order of the Employment Standards Tribunal. If the preconditions are not met, the director has no authority to enforce an arbitration award.

The arbitration board award is filed in Supreme Court under s.91(1) of the Act, to be enforced in the same manner as a judgment of the Supreme Court. The collection provisions of the Act apply for recovery of the unpaid wages.

Subsection (9)

Under the B.C. Labour Relations Code, “arbitration board” includes:

(a) a single arbitrator, or

(b) another tribunal or body appointed or constituted under this Part or a collective agreement;


Related Information

Employment Standards Tribunal Decisions

Can-Achieve Consultants Ltd., BC EST #D463/97

Kirk Edward Shaw, a Director or Officer of Guardian Films Inc. and En Garde Films Inc., BC EST #D089/10

John Steven Huska, a Director and Officer of Cougar Metal 2005 Ltd., BC EST #D127/15

Court Decisions

NIL/TU,O Child and Family Services Society v. BCGEU, 2008 BCCA 333
Actton Transport Ltd. v. Director of Employment Standards, 2008 BCSC 1495

Related sections of the Act or Regulation

ESA

ESR

Other

See Employment Standards Factsheets

Factsheets

Collective Agreements and the Employment Standards Act

Employee or Independent Contractor

Enforcement Measures and Penalties

Minimum Wage