Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations

EMPLOYMENT STANDARDS REGULATION - PART 7 - VARIANCES AND EXCLUSIONS

ESR Section 31 – Professions and occupations excluded from the Act


Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information


Summary

This section identifies certain types of employees who are not covered by the Employment Standards Act based on their profession or occupation. 


Text of Legislation

31. The Act does not apply to an employee who is

(a) an architect, as defined in the Architects Act,

(b) a member, other than an honorary member, of the Organization of Chartered Professional Accountants of British Columbia under the Chartered Professional Accountants Act or a person enrolled as a student under that Act,

(c) a member of the Law Society of British Columbia under the Legal Profession Act or a person enrolled as an articled student under that Act,

(d) a registrant of the College of Chiropractors of British Columbia continued under the Health Professions Act,

(e) a registrant of the College of Dental Surgeons of British Columbia continued under the Health Professions Act, other than a registrant who is only authorized under the bylaws of that College to use the title "dental therapist" under that Act,

(f) a professional engineer, as defined in the Engineers and Geoscientists Act, or a person who is enrolled as an engineer in training under the bylaws of the council of the Association of Professional Engineers and Geoscientists of the Province of British Columbia,

(g) a person licensed as an insurance agent or adjuster under the Financial Institutions Act,

(h) a member in good standing of the Corporation of Land Surveyors of the Province of British Columbia under the Land Surveyors Act or a person admitted as an articled pupil under that Act,

(i) a registrant of the College of Physicians and Surgeons of British Columbia continued under the Health Professions Act,

(j) a registrant of the College of Naturopathic Physicians of British Columbia established under the Health Professions Act,

(k) a registrant of the College of Optometrists of British Columbia established under the Health Professions Act,

(l) a registrant of the College of Podiatric Surgeons of British Columbia established under the Health Professions Act,

(m) a person licensed under the Real Estate Services Act,

(n) a person registered under section 35 of the Securities Act,

(o) a member of the British Columbia Veterinary Medical Association under the Veterinarians Act, or

(p) a professional forester as defined in the Foresters Act,

so long as that person is carrying on the occupation governed by the Acts referred to in paragraphs (a) to (p).


Policy Interpretation

Section 3 of the Employment Standards Act establishes that the Act applies to all employees other than those excluded by regulation, as is the case for employees in the professions and occupations listed in this section.

As long as a person is carrying on the profession or occupation governed by the Acts referred to in paragraphs (a) to (p), they are not covered by the Employment Standards Act.

Specific information regarding some of the above listed occupations follows:

  • Section 31(e) applies only to registrants of the College of Dental Surgeons. Certified dental assistants are not registrants, and are covered by the provisions of the Act. The exclusion specifically states that is does not apply to dental therapists, who are covered by the provisions of the Act.
  • Section 31(g) applies only to employees holding a license as an insurance agent or adjuster and carrying on work in this occupation. An employee licensed as a “general insurance salesperson” is not excluded from the Act. While there are various levels of licenses for persons employed in the insurance industry an employee who is licensed as an insurance salesperson, regardless of the level of the license, is not excluded from the Act. Only those individuals specifically licensed as either an Agent or an Adjuster are excluded.
  • Section 31(n) applies to, among others, dealers, underwriters, advisors, and salespeople who are required to be registered under the Securities Act. Registration information is contained on the BC Securities Commission website.

Other exclusions from the Act

In addition to the exclusions from the Act named in this section, other classes of employees are also excluded from the Act, in its entirety, or from specific sections of the Act. These types of employees are identified in other sections of Part 7 of this Regulation. Employees covered by a collective agreement may also be excluded from certain parts of the Act in accordance with s.3 of the Act.

The Employment Standards Act is “benefits-conferring” legislation, therefore, should be interpreted in a broad and generous manner. Exclusions under the Regulation should be interpreted in a narrow manner so not to take away benefits otherwise conferred by the legislation. An exemption is applicable only in the clearest of cases.

The burden is on the employer to show that an employee is not covered by the Act because of an exclusion contained in this regulation. Criteria to be considered when identifying an appropriate exclusion include definitions from both the Act and Regulation, and a review of any other relevant statutes and regulatory policies.


Related Information

Related sections of the Act or Regulation

ESA

ESR

Other:

Accountants (Chartered) Act

Legal Profession Act

Health Professions Act

Real Estate Act

Securities Act

Veterinarians Act

Foresters Act