Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS ACT - PART 1 - INTRODUCTORY PROVISIONS

ESA Section 4 – Requirements of this Act cannot be waived


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section ensures that any party cannot waive the minimum requirements of the Employment Standards Act and that an agreement referred to in s.3(2) or s.3(4) is not such a waiver. 


Text of Legislation

4. The requirements of this Act and the regulations are minimum requirements and an agreement to waive any of those requirements, not being an agreement referred to in section 3 (2) or (4), has no effect. 


Policy Interpretation

The Act prohibits employers and employees, subject to s.3, from entering into working arrangements that provide for standards that are less than those set out under the Employment Standards Act and Regulations. Such agreements are in contravention of the Act.

If an employer and an employee agree to conditions of employment that are less than the minimum standards set out in the Act, they are deemed to be without effect.

Example

Todd approaches his employer with a request to work additional hours, at the regular rate of pay, not at the overtime rates required by the Act. Todd’s employer agrees and schedules him to work the additional hours. This agreement contravenes the Act, and therefore is considered to have no effect. Todd’s employer is required by the Act to pay the overtime rates of pay.

This section of the Act also means that if an employee did not complain about an arrangement that was contrary to the Act during the period of employment, that failure to complain does not take away their entitlement to the provisions of the Act.

Example

Theresa worked a Saturday shift in addition to working 8 hours daily Monday to Friday, and is therefore entitled to weekly overtime under section of the Act. Theresa was paid the Saturday shift at regular rate, and did not complain about it during employment. Theresa’s employer argued that the decision to work overtime hours was made voluntarily by Theresa in an effort to increase earnings and that failure to complain during employment means she cannot complain later. The agreement, if there was one, is without effect because it contravenes the Act. The director can require the employer to pay the overtime rates to the employee, and if a determination is issued under s.79 of the Act an escalating monetary penalty is imposed, subject to s.98 of the Act.

Where an employer and an employee have considered the minimum employment standards when resolving a dispute between them, and the resolution is expressed in a binding legal release, the director would not normally investigate a complaint subsequently filed by the employee. The director is of the view that matters between the parties were resolved to their mutual satisfaction at that time, and it does not fulfill a purpose of the Act to later reopen them.

Where there is evidence of coercion or duress, the director will set aside that release and investigate, mediate, and/or adjudicate the complaint to determine if a contravention has occurred.

Example

An employer requires Elaine to sign a "release" acknowledging that the ‘final' paycheque is full and complete payment of all wages. However, it does not contain statutory holiday and annual vacation pay owed to the employee. The employer states that he will not provide the paycheque to Elaine unless she first signs the release. Elaine signs the release because she has financial obligations that she must meet. She then files a complaint for statutory holiday pay and vacation pay.

The director would ignore the release and investigate, mediate and/or adjudicate the complaint for outstanding wages.

Example 4

An employee offers to work on a two-week trial basis without wages. This offer contravenes the Act. The employer will be liable for all wages and if a determination under s.79 of the Act is issued an escalating monetary penalty is imposed, subject to s.98 of the Act.


Related Information

Employment Standards Tribunal Decisions

Prints-Charming Framing (1009) Ltd.; (BC EST #D434/97)
Jas Rai Labour Supply Ltd.; (BC EST #D066/06)

Related sections of the Act or Regulation

ESA

Other

See Employment Standards Factsheets

Factsheets

Collective Agreements and the Employment Standards Act

Complaint Resolution and the Employment Standards Act

Enforcement Measures and Penalties

Employment Standards Self-Help Kit – Information for Employers