Employment Standards Act & Regulation Definitions

Look-up definitions for specific terms used in the Employment Standards Act or Regulation. 

Employment Standards Act

Text from the Act

"assignment of wages" includes a written authorization to pay all or part of an employee's wages to another person;


Policy interpretation

An assignment of wages is a deduction from wages, authorized in writing by the employee for their benefit, such as pension or medical plans, union dues, charitable donations or credit obligations. An example of a credit obligation is an agreement to pay for goods purchased, which may include a purchase from the employer.

An assignment must be in writing specifying the purpose, amount, and duration of the deduction. It must be dated and signed by the employee.

An employer must not, directly or indirectly, withhold, deduct or offset any employee’s earnings for any reason without their written authorization. Such authorization does not include an agreement by an employee to pay any of an employer’s business costs. This type of deduction is a contravention of s.21(2) of the Act. 



Text from the Act

"collective agreement" means the same as in the Fishing Collective Bargaining Act, the Labour Relations Code, or the Public Service Labour Relations Act;


Policy interpretation

A collective agreement is a set of terms and conditions of employment that has been agreed to by an employer and a union. The nature of the employment determines which of the three statutes would apply.

  • In the Fishing Collective Bargaining Act, a collective agreement is a written agreement between a trade union and an employer (or an employer organization authorized by the employer). The agreement provides for minimum fish prices, share arrangements between the fishing vessel owner and crew members, hours of work, or other conditions of employment. The agreement also may include any similar existing agreement that was entered into before this Act came into force.
  • In the Labour Relations Code, a collective agreement is a written agreement between a trade union and an employer (or an employer's organization authorized by the employer). The agreement provides for rates of pay, hours of work, or other conditions of employment, which may include compensation to dependent contractors for furnishing their own tools, vehicles, equipment, machinery, material, or any other thing.
  • In the Public Service Labour Relations Act, a collective agreement is a written agreement between the government and a trade union. The agreement contains terms and conditions of employment of employees, including rate of wages or salaries, hours of work, and other working conditions.


Text from the Act

"conditions of employment” means all matter and circumstances that in any way affect the employment relationship of employers and employees;


Policy interpretation

Conditions of employment are given broad interpretation under the Act, rather than a restrictive interpretation. Conditions of employment can be oral, through verbal commitment or practice, or in a written contract, or in a collective agreement.

Examples of employment conditions include, but are not limited to, wages, payment of wages, benefits, job classification, job responsibilities, hours of work, and where the work is to be performed.



Text from the Act

"construction" means the construction, renovation, repair or demolition of property or the alteration or improvement of land;


Policy interpretation

Typically construction involves a bid process or construction contract relating to development of a project that has a predictable completion date. In general:

  • Workers employed for initial construction, installation, or improvement projects are engaged in construction.
  • Workers employed to service and maintain existing structures are not engaged in construction.

Each case will be determined on its own merits considering whether the type of work meets the definition of "construction" or whether it is considered to be a service or maintenance.


Related information

Employment Standards Tribunal Decisions

  • E. Nixon Ltd. - BC EST #D573/97
  • Urban Sawing & Grooving Company Ltd. - #RD188/05
  • Heron Construction & Millwork Ltd. - #D087/08

Sections of the Act


 

Day

Text from the Act

"day" means

(a) a 24 hour period ending at midnight, or

(b) in relation to an employee's shift that continues over midnight, the 24 hour period beginning at the start of the employee's shift;


Policy interpretation

"Day" means one of the following:

  • a 24 hour period ending at midnight
  • When a shift continues over midnight, the 24 hour period beginning at the start of the employee’s shift

The definition of “day” protects employees whose shift straddles midnight. For example, employees are entitled to overtime when working a shift longer than eight hours, even if the shift straddles midnight.

Example: An employee works from 7:30 am to 3:30 pm on Monday, Tuesday and Wednesday. They have completed three days of work.

Example: An employee’s scheduled shift starts at 10 pm in the evening and ends at 6 am the following morning. The employee works this shift starting on Monday, Tuesday, and Wednesday. They have completed three days of work even though the shift ends at 6 am on the fourth day of that work week.



Text from the Act

"determination" means any decision made by the director under section 30(2), 66, 68(3), 73, 74(5), 76(1.1) or (3), 79, 80(3), 100 or 119;


Policy interpretation

A “determination” or decision of the director made under any of these sections may be appealed to the Employment Standards Tribunal.

Where a determination is issued under s.79 of the Act, naming a person that has contravened a requirement of the Act or the Employment Standards Regulation, the determination will also include an escalating monetary penalty, subject to s.98 of the Act.



Text from the Act

"director" means the Director of Employment Standards appointed under the Public Service Act and, in relation to a function, duty or power that the director has under section 117 of this Act delegated to another person, "director" includes that other person;


Policy interpretation

Under s.117 of the Employment Standards Act, the Director of Employment Standards may delegate the director’s functions, duties or powers under the Act.

This delegation includes, but is not limited to, employees of the Employment Standards Branch.


Related information


Text from the Act

"domestic" means a person who

(a) is employed at an employer's private residence to provide cooking, cleaning, child care or other prescribed services, and

(b) resides at the employer's private residence;


Policy interpretation

A domestic is a person whose employment duties include domestic chores such as cooking, cleaning, laundry, or child care for the employer. Domestics live in the private residence of their employers.

Under s.14 of the Act, an employer of a domestic is required to provide an employment contract setting out the conditions of employment, including the duties to be performed. An employer may not charge a domestic more than the monthly rate for room and board specified in s.14 of the Employment Standards Regulation.

A domestic must also be registered in accordance with s.15 of the Act and s.13 of the Employment Standards Regulation.

The term "domestic" is not commonly used in the workplace and often employees in this category are referred to as domestic workers, care givers, nannies, or au pairs.

A “domestic” is entitled to all the protections of the Employment Standards Act.

Example: An employee is hired to cook, clean and care for three small children while their parent is at work. The employee arrives at 8:00 am and leaves at 5:00 pm each day upon the parent's return from work. The employee is not a domestic because they do not live at their employer’s residence.

Under the Employment Standards Act and Regulation, there are several different categories of employees who provide care and home services and these other types of employees should not be confused with a “domestic”. They include:

  • Live-in home support worker
  • Night attendant
  • Residential care worker
  • Sitter


Text from the Act

"employee" includes

(a) a person, including a deceased person, receiving or entitled to wages for work performed for another,

(b) a person an employer allows, directly or indirectly, to perform work normally performed by an employee,

(c) a person being trained by an employer for the employer's business,

(d) a person on leave from an employer, and

(e) a person who has a right of recall;


Policy interpretation

The Act applies to all employees under provincial jurisdiction regardless of status (casual, probationary, temporary) or hours worked (full time, part time). An employee is entitled to be paid wages in accordance with the Act for work performed, subject to the exemptions and exclusions in the Regulation.

See the Regulation for employees and occupations excluded from the Act or portions of the Act.

The Act does not have jurisdiction over a person who works as an independent contractor. See discussion on employee/independent contractor at the end of this section.

The Act does not apply to employees under federal jurisdiction. Refer to s.3 for information on how to determine what work falls under federal jurisdiction.

The definition of “employee” is very broad. It includes:

Subsection (a)

A person who works for another and is entitled to wages, regardless of whether they are employed on a part-time, full-time, temporary, or permanent basis. The director may also recover wages on behalf of a deceased employee.

Subsection (b)

Any person an employer allows, directly or indirectly, to perform work normally done by an employee is an employee under the Act. The employer is expected to have control and direction over the workplace including all persons performing work. A person may become an employee without the employer's permission or immediate knowledge.

Example: An employee wants some time off work, and with the employer’s knowledge arranges for a co-worker to cover the shift. That co-worker is entitled to be paid by the employer, even if the extra shift means the employer incurs extra liability for wages such as overtime.

Example: In a small restaurant, an employee, without the employer’s permission or knowledge, asks a friend to help wash dishes. The employer discovers the friend three hours later and asks them to leave. That person is an employee who is entitled to be paid wages for hours worked since he or she performed work normally performed by an employee.

Subsection (c)

Any training done at the request of the employer for the benefit of the employer or the employer's business is considered to be work done by an employee. Anyone performing such work is entitled to wages. This includes activities such as:

  • training for the employer's business that employees take prior to starting regular work, even if it conducted off the employer’s premises;
  • job shadowing or other training during work hours; and
  • trial periods for prospective employees.

Example: An employer requires an applicant to work a four hour shift to see if they can handle the work. The applicant is an employee who is entitled to be paid for work performed.

Activities performed to meet a pre-hiring condition of employment such as acquiring or maintaining certifications (for example, an air brake ticket, commercial driver’s licence or first aid certificate) are not considered training for the purposes of determining whether a person is an employee under the Act.

A person who performs an evaluation or test, such as a word processing test, given to prospective employees as part of an interview process, is not considered an employee and the test is not work.

A person who performs work for the employer’s benefit while being evaluated for a job must be paid, even if the work performed does not result in an offer of continuing employment.

Subsection (d)

The employment relationship continues during a temporary layoff or a leave under this Act. Examples of leaves include:

  • Pregnancy and parental leave
  • Illness or injury leave
  • Family responsibility leave
  • Compassionate care leave
  • Bereavement leave
  • Reservists' leave
  • Jury duty

An employee who is on a leave of absence is entitled to the provisions of the Act. A leave of absence does not affect entitlement to the minimum standards under the Act and length of service accrues as if the employee were present at the workplace.

Subsection (e)

A person who has recall rights under a collective agreement remains an employee until those rights expire or are terminated by the employee.

Employee or Independent Contractor?

The Act includes workers who may not be employees at common law. The Regulation excludes certain workers from coverage under the Act, some of whom may be employees at common law.

The definition of “employee” as discussed above, as well as the definitions of “employer” and “work” are intended to cover as many work relationships as possible. The Act is benefits conferring legislation. It must be construed in a broad, generous and purposive manner. Any doubt arising from how the definitions fit a particular fact situation is to be resolved in favor of the worker.

Section 4 of the Act prohibits employers and employees from contracting out of the Act. For this reason, a worker is not an independent contractor simply because they signed a written agreement to that effect. The definitions in the Act are central in determining the true nature of the relationship including whether the worker is an employee or independent contractor.

The overriding question is “whose business is it?” Is the person who is doing the work doing it as a person in business for themselves?

The courts have developed several common law tests to distinguish between employees and independent contractors. These tests are less important than the statutory definitions but can be useful to help identify some factors to consider.

Several factors that may be helpful to consider include:

  • The level of direction or control the person paying for the work exerts over the worker: for example, who defines what the job is and how and when it is done
  • Who has the chance of profit and risk of loss and who sets the rate the worker will be paid
  • Whether the work performed is integral to the business
  • Whether the worker has a number of clients, or works solely for the person paying for the work
  • Whether the worker is hired to do a specific time-limited job as opposed to the parties being engaged in an ongoing relationship

The longer a person works for another, the more closely the worker’s duties are connected to the purpose of the business and the more the person who pays the worker controls the material, directs the activities and earns the profit or suffers the loss, the more likely it is that the relationship is one of employer/employee.

Contracts

Contracts establish the terms and conditions of the relationship between the parties.

Where parties have entered into a written contract that the director finds to be an employment contract, the terms of the contract will be considered in the context of the requirements of the Act. The director can enforce contracts that provide for more than the minimum requirements of the Act.

Contracts may have conditions which contravene s.4 of the Act. Where a contract has certain provisions which purport to waive requirements of the Act, those sections will be considered of no effect and the minimum standards of the Act will be applied.


Related information

Employment Standards Tribunal Decisions

  • North Delta Real Hot Yoga Ltd., BC EST #026/12
  • Mickey Transport Ltd., BC EST #012/10

Court Decisions

  • 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. [2001] 2 S.C.R. 983 (S.C.C.), at paras. 47 and 48

Sections of the Act

Sections of the Regulation

Factsheets


Text from the Act

"employer" includes a person

(a) who has or had control or direction of an employee, or

(b) who is or was responsible, directly or indirectly, for the employment of an employee;


Policy interpretation

Refer to definition of “employee” under this section for information on how to distinguish an employer/employee relationship from one involving an independent contractor.

Where a definition relies on the wording “includes”, it is considered to be an inclusive definition and should be given broad and liberal interpretation. The Employment Standards Act relies upon, but is not restricted to, common law definitions.

Subsection (a)

A person who has, or had control of an employee is considered to be the “employer” and liable for unpaid wages.

Subsection (b)

An employer is a person who is, or was, responsible, whether directly or indirectly, for the employment of an employee.

In determining who the proper employer is, for purpose of the Act, or if both business entities are employers the employment relationship will be scrutinized to determine:

  • How did the employee learn of the employment opportunity (i.e., advertising, etc.)
  • Was there a contract of employment; who were the parties
  • Who paid the employee (name on paycheque)
  • Who was responsible for everyday direction and control (i.e., discipline, salary adjustments, assigning job responsibilities)
  • Was an ROE issued
  • Who supplied equipment/supplies to perform employment tasks


Text from the Act

"employment agency" means a person who, for a fee and for employers, recruits or offers to recruit employees, except employees

(a) who are foreign nationals, as defined in the Temporary Foreign Worker Protection Act, and

(b) to whom recruitment services, as defined in that Act, must be provided in accordance with that Act;


Policy interpretation

To be considered an “employment agency” a person must be receiving a fee for recruiting or offering to recruit employees for employers.

Prior to operating, an “employment agency” must be licensed by the Employment Standards Branch. For further information on the Act’s requirements for employment agencies, see Part 2, ss. 10, 11, and 12 and licensing requirements in the Employment Standards Regulation.

A person providing information on employers or who provides a forum for the placement of advertisements by persons seeking employment is not an employment agency.

Example: A person runs an informal weekly meeting to provide hiring advice for people seeking employment. They often present job information from their business contacts that are looking for employees. They provide this information as a service without payment from anyone.

This person is not an “employment agency” because they have not been hired by employers to recruit employees.



Text from Act

"farm labour contractor" means an employer whose employees work, for or under the control or direction of another person, in connection with the planting, cultivating or harvesting of an agricultural product;


Policy interpretation

A farm labour contractor must be licensed under s.13 of the Act. A person who engages the services of a farm labour contractor in connection with the planting, cultivating or harvesting of an agricultural product is defined as a “producer” in this section.


 


Text from the Act

"former Act" means the Employment Standards Act, S.B.C. 1980, c.10;


Text from the Act

"gratuity" means

(a) a payment voluntarily made to or left for an employee by a customer of the employee’s employer in circumstances in which a reasonable person would be likely to infer that the customer intended or assumed that the payment would be kept by the employee or shared by the employee with other employees,

(b) a payment voluntarily made to an employer by a customer in circumstances in which a reasonable person would be likely to infer that the customer intended or assumed that the payment would be redistributed to an employee or employees,

(c) a payment of a service charge or similar charge imposed by an employer on a customer in circumstances in which a reasonable person would be likely to infer that the customer intended or assumed that the payment would be redistributed to an employee or employees, and

(d) other payments as may be prescribed

but does not include

(e) payments as may be prescribed, and

(f) charges as may be prescribed relating to the method of payment used, or a prescribed portion of those charges;


Policy interpretation

Gratuities (tips) are paid by customers to the person who served them, in appreciation for the service. Although gratuities are not wages, the Act provides that employers cannot take them or withhold them from the employee who earned them. This includes tips that are paid by customers to the person who served them, or mandatory gratuities or service charges large groups are required to pay.

Employers can require employees to pool their tips, and to share them with those employees who work in positions that otherwise have no access to tips, but who a reasonable person would assume would share in the tips.

Example: An employer requires that servers put 15% of the tips they receive into a pool. At the end of each shift, the pool is shared with other employees who do not receive tips (e.g. hosts, bussers and cooks). The pool is distributed according to a formula agreed on by the employees. This activity does not contravene the Act.

Employers cannot deduct business costs from a tip pool, or from tips to which the employer has access, such as those made through debit or credit cards. An employer may not charge an employee for costs such as a "dine-and-dash fund."

Example: An employer requires all tips paid through credit or debit cards to be put in a tip pool. At the end of each month, after paying for dine-and-dash meals, for spillage, and for breakage, the employer distributes the remaining amount to all employees. This activity is a contravention of the Act.



Text from the Act

"immediate family" means

(a) the spouse, child, parent, guardian, sibling, grandchild or grandparent of an employee,

(a.1) the child or parent of an employee's spouse, and

(b) any person who lives with an employee as a member of the employee's family;


Policy interpretation

A broad and liberal interpretation of “immediate family” is considered by the director to include common-law spouses, step-parents, and step-children, or same sex partners and their children.

Any persons will be included as “immediate family” if they reside with the employee as a member of that employee’s family.

An exchange student residing with the employee’s family would be considered “immediate family.”


Related information

Sections of the Act


Text from the Act

"insolvency Act" means the Bankruptcy and Insolvency Act (Canada), the Companies' Creditors Arrangement Act (Canada) or the Winding-up and Restructuring Act (Canada);


Policy interpretation

These federal statutes are referred to separately and collectively as “insolvency Act”.


Related information

References

  • Bankruptcy and Insolvency Act Companies' Creditors Arrangement Act Winding-up Act

Sections of the Act


Text from the Act

"Labour Relations Board" means the board as defined in the Labour Relations Code;


Policy interpretation

The Labour Relations Board has Provincial jurisdiction over applications concerning employees and employers under the B.C. Labour Relations Code.

An application for certification of a bargaining unit by a trade union must be made to the B. C. Labour Relations Board.



Text from the Act

"overtime wages" means the wages an employee is entitled to receive under subsection 37 (4), (5) or (6) or 40;


Policy interpretation

Section 40 of the Act sets out the rates of pay that an employer must pay to an employee who works more than 8 hours in any day or more than 40 hours in a week.

Section 37 of the Act allows an employer and an employee to make a written agreement to average hours of work over a period of 1 to 4 weeks. The overtime wages an employee is entitled to are specified by this section.

In accordance with the definition of “week” in this section, for overtime purposes, a week is a 7 consecutive day period beginning on Sunday at 12:01 am and ending at midnight on Saturday.

Refer to Part 7 in the Employment Standards Regulation for exclusions to the overtime wage provisions in the Act.



Text from the Act

"pay period" means a period of up to 16 consecutive days of employment;


Policy interpretation

A pay period may be as long as 16 calendar days, and there must be at least two pay periods in a month. An employer must ensure that employees are paid at least twice a month and within eight days after the end of the pay period.



Text from the Act

"payroll record" means a record required under section 28 to be kept by an employer;


Policy interpretation

Payroll records, including a record of daily hours worked, must be kept for all employees regardless of the method of payment or duration of employment. These records must be kept for both current and past employees for a period of 2 years after employment ends.

Payroll records including a daily record of hours worked must be kept for all employees, regardless of whether they are paid on an hourly rate, commission, piece rate or other incentive basis. Employers of employees who are excluded from certain provisions of the Act are also required to keep payroll records under this section.

If the director determines under s.79 of the Act that a person has contravened the requirement to keep and maintain records in accordance with s.28 of the Act the employer will be subject to an escalating monetary penalty, subject to s.98 of the Act, as specified in the Employment Standards Regulation, s.29.



 

Text from the Act

"penalty" means a monetary penalty imposed under section 98;


Policy interpretation

When a determination is issued under s.79 of the Act finding a contravention of the Employment Standards Act or the Employment Standards Regulation, an escalating monetary penalty must be imposed, subject to s.98 of the Act. The amount of the penalty will escalate in accordance with s.29 of the Employment Standards Regulation.

Any penalty imposed under s.98 of the Act is treated the same way as wages for the purposes of collection.


Related information


Text from the Act

"producer" means a person who engages the services of a farm labour contractor;


Policy interpretation

A “producer” is a person who engages the services of a farm labour contractor in connection with the planting, cultivating or harvesting of an agricultural product.

In certain situations a “producer” may be held liable for unpaid wages as referred to in ss.13 and 30 of the Act.



Text from the Act

"regular wage" means

(a) if an employee is paid by the hour, the hourly wage,

(b) if an employee is paid on a flat rate, piece rate, commission or other incentive basis, the employee's wages in a pay period divided by the employee's total hours of work during that pay period,

(c) if an employee is paid a weekly wage, the weekly wage divided by the lesser of the employee's normal or average weekly hours of work,

(d) if an employee is paid a monthly wage, the monthly wage multiplied by 12 and divided by the product of 52 times the lesser of the employee's normal or average weekly hours of work, and

(e) if an employee is paid a yearly wage, the yearly wage divided by the product of 52 times the lesser of the employee's normal or average weekly hours of work.


Policy interpretation

To determine an employee's entitlements, the Act requires compensation to be converted to an hourly rate, regardless of the method of payment.

Subsection (a)

Where an employee is paid an hourly wage, this is considered to be the “regular wage” for purposes of the Act.

Subsection (b)

Where an employee is paid on a flat rate, piece rate, commission or other incentive basis, regular wage is determined by dividing an employee's wages by the employee’s total hours of work during the same pay period.

Regardless of the calculation, the regular wage cannot be less than minimum wage.

Commission Sales: Refer to Employment Standards Regulation s. 37.14 for information on the application of legislation to a salesperson paid entirely or partly by commission.

Example – Flat Rate: A worker in a transmission repair shop is paid a book or “flat rate” for fixing a transmission in a car. The book states that the job should take 10 hours. The employer agrees to pay the employee 10 hours at $25 per hour to do the job or a flat rate of $250, regardless of the actual hours of work. This does not make the employee’s rate of pay $25 per hour. If the employee completes the job in 6 hours they are also paid $250.00. There is no overtime payable as the actual hours worked to do the job were not more than eight.

If the employee takes 20 hours to do the job, (two 10-hour days), and that was all the work performed in the pay period, the employee’s rate of pay would be $250 divided by 20 hours = $12.50 per hour. The employee would be entitled to be paid:

16 hours @ $12.50 per hour = $200.00
4 hours @ $18.75 per hour ($12.50 x 1.5) = $75.00 (Overtime wages)
Total straight time and overtime wages = $275.00
Total wages payable: $275.00 - $250 (Flat rate paid) = $25.00

Example – Piece Rate: A factory worker who is paid on a piece rate basis works one 10-hour day in the pay period. The employee packages nuts and bolts and is paid for each sealed package as follows:

Large bolts - 200 @ $0.40 $80.00
Small bolts - 150 @ $0.30 $45.00
Total piece rate wages $125.00

Regular wage rate = $125.00 divided by 10 hours = $12.50 an hour. The employee would be entitled to be paid:

8 hours @ $12.50 per hour $100.00
2 hours @ $18.75 per hour ($12.50 x 1.5) $37.50 (Overtime wages)
Total wages payable: $137.50

Example - Commission: The regular wage of an employee earning a commission paid on a bi-weekly basis is calculated according to the following formula: In the 2-week pay period the employee received $1,645.00 and worked 8 hours a day, 6 days a week totaling 96 hours during the pay period. The regular wage is calculated in the following manner:

$1,645 divided by 96 hours = $17.14 per hour is the regular wage. The employee would be entitled to be paid:

80 hours @ $17.14 per hour = $1371.20
16 hours @ $25.71 per hour ($17.14 x 1.5) = $411.36 (Overtime wages)
Total straight time and overtime wages: = $1,782.56
Total wages payable: $1,782.56 – $1,645.00 (Wages paid) = $137.56

Note: Refer to Employment Standards Regulation s. 37.14 for information on the application of legislation to salespersons paid in whole or in part by commission.

Subsection (c)

When an employee is paid a weekly wage: Weekly wage divided by lesser of normal or average weekly hours of work.

Subsection (d)

When an employee is paid a monthly wage: Monthly wage X 12 divided by 52 times lesser of normal or average weekly hours.

Example: An employee works in a downtown office as a receptionist and has a monthly salary of $3,000/month. Their daily working schedule is 8:00 am to 5:00 pm with a one hour unpaid lunch break for a total of 8 hours worked per day, 5 days per week, for a total of 40 hours per week. Based on the employee's monthly salary, regular wage would be calculated as follows:

$3,000 X 12 months = $36,000/year divided by 52 weeks = $692.31/week
$692.31/week divided by 40 hours per week = $17.31/hour regular wage

Subsection (e)

When an employee is paid a yearly wage: Yearly wage divided by 52 times lesser of normal or average weekly hours of work.

Example: A sales manager in a car dealership has a yearly salary of $60,000/year. Their weekly working schedule is 48 hours/week. Based on the yearly salary, the sales manager's regular wage would be calculated as follows: $60,000 divided by (52 weeks X 48 hours. per week = 2496) = $24.04/hour regular wage

“Normal” or “Average” weekly hours of work

Establishing “normal” or “average” weekly hours of work is determined by the circumstances of each employment situation.

“Normal” weekly hours are the weekly hours an employee is regularly expected to work. “Normal” weekly hours refers to a circumstance in which the employee has a consistent schedule of hours of work from week to week as part of their conditions of employment and those hours usually do not fluctuate from week to week.

Where “normal” weekly hours of work cannot be established, such as when hours of work fluctuate, “average” weekly hours of work will be used.

The period in which to determine “average” weekly hours of work is not provided by statute. Therefore, the director will use the period of employment up to 6 months before the earlier of the date of the complaint or termination of employment. Where a complaint has not been filed, the director will use the period of employment up to 6 months before the director first told the employer of the investigation.



Text from the Act

representative member” means a member of the tribunal appointed under section 102;


Policy interpretation

A representative member is a person referred to in Part 12 of the Act, who, on behalf of the Employment Standards Tribunal, decides appeals and reconsiderations of determinations issued by the Director.



Text from the Act

"right of recall" means the right of an employee under a collective agreement to be recalled to employment within a specified period after being laid off;


Policy interpretation

Right of recall applies to an employee working under a collective agreement. “Right of recall” means when an employee is laid off, they retain the right to be brought back to work under the provisions of a collective agreement. A person on layoff with recall rights is considered an employee.

For the purposes of the Act, once the right of recall expires, an employee is considered terminated as referred to in “temporary layoff” in this section.

Refer to s.3 of the Act for information on how the Act applies to employees covered by a collective agreement.


Related information


Text from the Act

"settlement agreement" means a settlement agreement under Section 78.


Policy interpretation

Under s.78 of the Act, the Director of Employment Standards can assist parties in reaching a settlement agreement to resolve complaints under the Employment Standards Act. Settlement agreements are binding and may be filed in Supreme Court for enforcement.

Under the Act “settlement agreements” are treated the same for wage collection purposes as a determination issued by the director naming a person responsible for unpaid wages.



Text from the Act

"special clothing" includes a uniform and a specified brand of clothing;


Policy interpretation

“Special clothing” includes a specific style of clothes, or clothes purchased from a specific supplier.

Refer to s.25 of the Act for the application and interpretation of what constitutes “special clothing” under the Act.


Related information

Employment Standards Tribunal Decisions

  • Y.M. Inc. operating as Stitches and Sirens

Sections of the Act


 

Text from the Act

"spouse" means a person who

(a) is married to another person, or

(b) is living with another person in a marriage-like relationship;


Policy interpretation

 



Text from the Act

"statutory holiday" means New Year's Day, Family Day, Good Friday, Victoria Day, Canada Day, British Columbia Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day, and any other holiday prescribed by regulation;


Policy interpretation

Easter Monday and Boxing Day are not statutory holidays.

Statutory Holiday Date
New Year's Day January 1st
Family Day The third Monday in February
Good Friday The Friday before Easter Sunday. Easter Sunday is the first Sunday after the full moon on or following March 21st, or one week later if the full moon falls on Sunday.
Victoria Day The first Monday before May 25th
Canada Day July 1st unless it falls on a Sunday, in which case, it is on July 2nd
B.C. Day The first Monday in August
Labour Day The first Monday in September
Thanksgiving Day The second Monday in October
Remembrance Day November 11th
Christmas Day December 25th

Refer to the Employment Standards Regulation for exclusions to statutory holiday entitlements under the Act.

Read more about statutory holidays



Text from the Act

"Talent agency" means a person that, for a fee, engages in the occupation of offering to procure, promising to procure, attempting to procure or procuring employment for actors, performers, extras, or technical creative film persons.


Policy interpretation

Talent agencies in British Columbia must be licensed as required by s.12(1) of the Act.

The requirements for licensing of talent agencies are outlined in the Employment Standards Regulation, s.38.

Read more about talent agencies



Text from the Act

"temporary layoff" means

a) in the case of an employee who has a right of recall, a layoff that exceeds the specified period within which the employee is entitled to be recalled to employment, and

(b) in any other case, a layoff of up to 13 weeks in any period of 20 consecutive weeks;


Policy interpretation

Subsection (a)

This provision applies to employees covered by a collective agreement. Section 1(2) of the Employment Standards Regulation states that for purposes of subsection (a) above, “exceeds” means the specified recall cannot be exceeded by more than 24 hours.

That is, an employee must be recalled within 24 hours after their specified recall date or their employment is considered terminated.

Subsection (b)

The Act does not give employers a general right to temporarily lay off employees.


A fundamental term of an employment contract is that an employee works and is paid for their services. An employer cannot temporarily lay off an employee unless temporary layoff:

  • Is expressly provided for in the contract of employment;
  • Is implied by well-known industry-wide practice (e.g. logging, where work cannot be performed during “break-up”); or
  • Is agreed to by the employee.

In the absence of an express or implied provision allowing temporary layoff, a layoff constitutes termination of employment.

The onus is on the employer to prove that the employment relationship provides for a temporary layoff in one of the above ways. In situations where temporary layoff is permitted by the terms and conditions of employment, the Act limits the length of the layoff.

If temporary layoff is permitted, employers may temporarily lay off employees for up to 13 weeks in a consecutive 20-week period. The 20-week period begins on the first day of the layoff and the 13-week period is exceeded on the first day of the 14th week of layoff. The layoff is deemed to be a termination of employment once the 13 weeks of layoff are exceeded.

Under the Act, any week in which an employee earns less than 50% of regular wages is considered to be a week of layoff for purposes of Part 8, Termination of Employment. (Refer to s.62, definition of “week of layoff).



Text from the Act

"termination of employment" includes a layoff other than a temporary layoff;


Policy interpretation

Termination of employment” means the end of employment and includes the following under the Act:

  • An employee quits, retires or is dismissed. [See s.63(3)(c)];
  • Employment is terminated by an operation of law [See s.64(6)];
  • An employee whose employment contract provides for a temporary layoff has been laid off for longer than is allowed by the Act [See s. 1(1) definition of “temporary layoff” and s.63(5)];
  • The director considers a condition of employment to be substantially altered. (See s.66).

Section 63 of the Act outlines the compensation for an individual employee’s termination. Section 64 of the Act sets out group termination in the case of 50 or more employees being terminated at a single location.



Text from the Act

"termination pay" means, for each week of notice an employee is entitled to, the amount obtained by totaling the employee's weekly wages, at the regular wage, during the last 8 weeks in which the employee worked normal or average hours of work and dividing the total by 8;


Policy interpretation

Termination pay refers to the group termination provisions under s.64 of the Act.

Overtime wages are not included in this calculation.

The group notice and /or termination pay requirements of s.64 are in addition to the employer's liability, if any, to the employee in respect of individual termination under s.63 of the Act, or under the collective agreement, as the case may be.

Under s.68 of the Act, group termination pay is payable whether or not the employee obtains other employment.



Text from the Act

"time bank" means a time bank established under Section 42 at the request of an employee;


Policy interpretation

At the written request of an employee, overtime wages may be banked. Overtime wages paid into the time bank must be paid out at the same rates required under ss.37(4), (5), or (6), or s.40 of the Act.



Text from the Act

"trade union" means the same as in the Labour Relations Code;


Policy interpretation

In the Labour Relations Code, a union is an organization or association of employees that helps regulate relations between employers and employees through collective bargaining.

Section 3 of the Act explains how the Act applies to employees covered by a collective agreement. A “collective agreement” defined in s.1 of this section is a written agreement between a trade union and an employer (or an employer’s organization authorized by the employer).



 

Text from the Act

"wages" includes

(a) salaries, commissions or money, paid or payable by an employer to an employee for work,

(b) money that is paid or payable by an employer as an incentive and relates to hours of work, production or efficiency,

(c) money, including the amount of any liability under section 63, required to be paid by an employer to an employee under this Act,

(d) money required to be paid in accordance with

(i) a determination, other than costs required to be paid under section 79 (1) (f), or

(ii) a settlement agreement or an order of the tribunal, and

(e) in Parts 10 and 11, money required under a contract of employment to be paid, for an employee's benefits, to a fund, insurer or other person,

but does not include

(f) gratuities,

(g) money that is paid at the discretion of the employer and is not related to hours of work, production or efficiency,

(h) allowances or expenses,

(i) penalties, and

(j) an administrative fee imposed under section 30.1.


Policy interpretation

Wages

Subsection (a) and (b)

Under the definition of “wages” in the Act, wages include any money paid or payable by an employer to an employee for services rendered or labour provided. This includes any incentive related to an employee’s work performance, or the performance of the company.

Examples

  • A bonus for remaining to the end of a season, for seasonally employed persons, if the bonus was a term and condition of employment when hired, or during the employment period
  • Additional commission if certain sales objectives are met, such as 10% commission if more than $250 of product is sold in a day
  • Contributions towards an RRSP if the employee meets certain sales objectives
  • A $100 bonus for each employee if the company meets a projected sales target

Subsection (c)

Section 63 of the Act establishes the amount of compensation for length of service an employer must provide when terminating an employee’s employment. This amount is recoverable as wages under the Act.

Subsection (d)

Amounts payable to an employee under the Act can be recovered by the director as wages through the Act's wage recovery mechanism. This includes any money ordered to be paid by the director in a determination under s.79 including:

  • Any money an employer requires an employee to pay, directly or indirectly, toward an employer's cost of business, is recoverable as wages pursuant to Part 3. s.21(2). This includes money paid out of an employee’s gratuities. [See s.21(3)]
  • Any money collected or deducted from the employee, but not remitted to a third party as required, is recoverable as outstanding wages, pursuant to s.23.
  • Interest (s.88(3))
  • Third party demands (s.90(1))
  • Seizure of assets (s.92(1)(b))
  • Wrongful removal of seized assets (s.94(3))
  • Penalties imposed under Section 98. (s.98(4))

Wages also includes amounts payable in a settlement agreement under s.78 of the Act and an order of the Tribunal.

Subsection (e)

Any money an employer agrees to pay on behalf of an employee under s.26 of the Act must be paid in accordance with the terms of the employment contract. Where an employer fails to make the remittance, as required, these amounts are recoverable as wages under Part 10 and 11 of the Act.

Non-wages

Subsection (f)

Gratuities (tips) are paid by customers to the person who served them, in appreciation for the service.  They are excluded from the definition of wages but if an employer uses them to pay business costs they are deemed to be wages and can be recovered under the Act. (See section 21(3)).

Employers can require employees to pool their tips, and to share them with those employees who work in positions that otherwise have no access to tips, but who a reasonable person would assume would share in the tips.

Example: An employer requires that servers put 15% of the tips they receive into a pool. At the end of each shift, the pool is shared with other employees who do not receive tips (e.g. hosts, bussers and cooks). The pool is distributed according to a formula agreed on by the employees. This activity does not contravene the Act.

Employers cannot deduct business costs from a tip pool, or from tips to which the employer has access, such as those made through debit or credit cards. An employer may not charge an employee for costs such as a "dine-and-dash fund."

Example: An employer requires all tips paid through credit or debit cards to be put in a tip pool. At the end of each month, after paying for dine-and-dash meals, for spillage, and for breakage, the employer distributes the remaining amount to all employees. This activity is a contravention of the Act.

Subsection (g)

Wages do not include gifts or money paid strictly at the discretion of the employer that are not related to hours of work, production or efficiency.

Example: An employer surprises each employee with a $100 gift certificate. This payment is discretionary and not considered wages.

Subsection (h)

Wages do not include reimbursement for an employee’s personal expenses, such as car or meal allowances.

Subsection (i)

Wages do not include penalties.

Note: A determination issued under s.79 of the Act for unpaid wages must include the imposition of an escalating monetary penalty, subject to s.98 of the Act. The penalty, although not considered wages under the Act is treated as wages for the purposes of collection as noted in s.98(4).



 

Text from the Act

 "week" means a period of 7 consecutive days beginning,

(a) for the purpose of calculating overtime, on Sunday,

(b) for the purposes of section 37 and 52.1, on Sunday, and

(c) for any other purpose, on any day;


Policy interpretation

For the purposes of this Act, a week is a period of seven consecutive days. This is the case regardless of the pay period used by an employer.

When calculating overtime or for any purpose under s.37 (averaging agreements) or s.52.1 (compassionate care leave), a week always starts on Sunday at 12:00 am and ends at midnight the following Saturday.

For any other purpose, such as Part 5 Statutory Holidays, Part 7 Annual Vacation, and Part 8 Termination of Employment, the period of seven consecutive days can begins at 12:00 am on any day of the week.



Text from the Act

"work" means the labour or services an employee performs for an employer whether in the employee's residence or elsewhere.

(2) An employee is deemed to be at work while on call at a location designated by the employer unless the designated location is the employee's residence.


Policy interpretation

Work is:

  • The labour or services performed by an employee, and
  • Being on call for an employer at a location designated by the employer, except the employee's residence

Time spent by an employee performing labour or service for an employer is time worked and time for which wages are payable. Labour or service can be performed in the employee's residence or elsewhere.

Reference to “on-call” employees is in subsection (2) below.

Related topics: A practicum is not considered “work”, but apprenticeship training or an internship is.

A "practicum" is part of a formal education process for students enrolled in a public or private post-secondary institution that involves the supervised practical application of previously classroom taught theory related to course study. The students are usually engaged in studies to obtain a degree so as to pursue a career in education, medicine, or engineering. A practicum is "hands-on" training that is required by the curriculum, and will result in a certificate or diploma. It is not considered to be “work” for the purposes of the Act.

An “internship” is on-the-job training offered by an employer to provide a person with practical experience. Often internships are offered to persons who have completed a diploma or degree program and are seeking employment. Completing an internship does not itself result in an academic certificate or diploma. If the duties performed by interns fall within the definition of  “work” contained in the Act, the intern falls within the definition of “employee”, and the agency using the services of an intern falls within the definition of “employer”, internships will be considered “work” for the purposes of the Act.

An apprentice is being trained while working for an employer and as such is performing work and must be paid wages.

Wages for Training

When training time is considered "work" for the purposes of this Act: Employers are required to pay for the training an employee needs in order to learn how to do their job at the employer’s business. Training directed by the employer, or on the employer’s behalf, which is related to performing the employment duties the employee has been hired to do is considered work. For example, an employee must be paid while they are being trained how to do such things as use tools and equipment, follow procedures in the workplace, assist customers and handle money and other forms of payment.

When training time is not considered work for the purposes of this Act: Training to obtain or maintain a permit, licence, certificate or ticket which enables the holder to seek employment with any number of employers is not considered to be “work”. Therefore, an employer is not required to pay for time spent by an employee to obtain and maintain “portable” permits issued, certified or mandated by the government. Some examples are a driver’s licence, a “FOODSAFE” food handling certificate or a security guard licence.

Wages for Meetings

Employees are considered to be at work while attending meetings conducted or arranged by their employer where they are instructed or provided information that serves a business purpose.

Example: A meeting to review new stock control procedures is considered to be work. That attendance at such a meeting is not mandatory does not mean attendance is not work.

Wages for Travel Time

Generally, employees are not entitled to wages for commuting to and from work. There are occasions when the time an employee spends getting to and from the work place is considered to be work.

Travel time is the time spent by an employee who, while acting on instructions from the employer, is providing a service to the employer when travelling to and from a work place. Providing a service means bringing employer provided tools, and equipment, materials, supplies, and in some cases, other employees, to the work place. Time spent travelling during the working day, going from one work place to another is work for which wages must be paid.

In certain circumstances, however, wages must be paid for time spent travelling to and from the job site. If an employer instructs an employee to report directly to a workplace different from the normal one, whether or not the travel time is paid work is determined by:

  • The nature of the work
  • The industry in which it is being performed
  • Whether the distance is reasonable

In general, reporting to a different place at the beginning of the shift is not paid travel time, except if the place is far away from the normal workplace.

Example: An employee who resides in Burnaby is employed to work on construction sites from Vancouver to Hope. They are not entitled to travel time from their residence to the construction site(s) and return. If they were required to report to a construction site in Whistler, the travel time from their residence to the site and return would be considered work. Also, time spent travelling between construction sites is considered work.

Example: A driving instructor drives from their residence to the first student driver without reporting to the business office. This time is not considered work. If the instructor was required to report to the business office before picking up the student driver the time spent driving from the business office to the student driver is considered work. Also, time spent driving between student drivers is considered work. Time spent returning to their residence after instructing the last driver of the day or from the business office is not considered work.

Example: I am required to drive a drill truck to work and to use that truck and equipment during my work day. Am I entitled to be paid for driving the truck to work?

YES. If you are required to drive the employer's truck to the job site so that it will be there for your use during the day, you are entitled to be paid for travel time to the job site. If you drive other employees to the job site, they are considered to be passengers who are commuting, and they are not entitled to wages for the travel time.

Example: My job requires that I travel to different job sites throughout the city during a normal working day. Am I entitled to travel time?

You would not be entitled to wages for the time spent travelling to the first job site, or returning home from the last. You would be entitled to wages for the time spent travelling from one job site to another during the day.

Example: I am the lead hand, and am expected to make sure there is a complete crew before leaving the marshalling point to drive the crew to the job site. Am I entitled to travel time?

YES, since you are performing work, by ensuring that there is a complete crew available before taking it to the job site, you are entitled to wages for the travel time.

Example: I work at the head office in Burnaby, and my employer tells me to work at our branch office in Kelowna for a week. Am I entitled to travel time?

YES, all travel time from home and back again would be paid time.

Marshalling Point

Some employers require employees to report to a designated marshalling point from which they are taken to the job site. The employer may provide a vehicle or arrange with an employee to drive others in their vehicle. Since reporting to the marshalling point is reporting to a place designated by the employer, the clock starts there and the driver and passengers are entitled to wages.

This arrangement is distinguished from one where employees may choose to carpool to work. If an employer provides a vehicle to an employee, and that employee uses it to pick up other employees at a meeting place they have chosen at a designated time, both driver and passengers are considered to be commuting, and therefore, wages are not earned during the trip. It is considered a convenience.

If an employee drives their own vehicle to and from work, the driver is not considered to be working, but is considered to be commuting. Therefore, wages would not be earned for the trip even if the employer pays for vehicle expenses.

Example: An employee works Tuesday to Friday at the downtown office and Saturday at the satellite office in the suburbs. In this case, regardless of the location, the employee is not entitled to wages for the trip to and from the workplace.

Ferry Trips

The time spent by a driver of a vehicle on a ferry vessel, if the ferry trip is normally less than two (2) hours duration, namely, all trips between the lower mainland, Vancouver Island and the Sunshine Coast, is considered to be work.

If a truck driver is required by an employer to remain with the truck this is considered to be work and the employee is entitled to wages for this period of time.

Subsection (2) On-call employees

If an employer requires an employee to remain in their residence to await a call to work the employee is considered on call and as such is not considered at work.

If employees are on call and must remain at a specific location, the employees must be paid wages because they are still under the employer's direction and not free to pursue their own interests. In general, employees' time that is controlled by the employer is paid time. The exception to this rule is when employees are required to remain on call at home.

An employee is designated as being "on-call" when the employer provides the employee with a pager, cell phone or other form of electronic communication which allows the employee a range of mobility so the employee can be away from their residence and continue to be an on-call employee. Since the employee is not at a place designated by the employer, the employee is not considered to be at work.

The exception, however, would be when the employer places restrictions on the activities of the employee that were so severe so as to have the same effect as specifying a place. For example, an employee whose employer expects a response within a hour of being paged is not considered to be at work, however, one who must report to the workplace within five minutes of being paged is, since the employee would have to be within blocks of the workplace in order to meet this expectation.

The minimum daily pay provisions of s.34 of the Act cover an employee responding to a “call."

An employee can be "on-call" virtually anywhere and need not be at a specific location designated by the employer. When that employee responds to a page, or a cellular call, the employee has in effect, "reported" to work and is entitled to minimum daily pay under s.34 of the Act. This has the effect of "reporting to work" and is not limited to physically reporting to the workplace.


Related information

Employment Standards Tribunal Decisions

  • West Vancouver Notes & Crafts Society, (BC EST #447/97)
  • Sate Express Foods Inc. (BC EST #007/07; Reconsideration #RD028/07)
  • City of Surrey (Firefighters) (BC EST #D077/98)
  • Irvine Miller, B.C. EST #D208/97
  • Lone Wolf Contracting (BC EST #D267/96; Reconsideration #RD230/97)
  • Luisito J. Arguelles (BC EST #002/09)

Sections of the Act


 


Employment Standards Regulation

 

Act

Text from the Regulation

"Act" Employment Standards Act;


Policy interpretation

On November 1st, 1995 the new Employment Standards Act and Regulation replaced the former Act. The former Act means the Employment Standards Act, S.B.C. 1980, c. 10.

The Act as referred to in this Regulation means the Employment Standards Act, R.S.B.C. 1996, c. 113.


Related information

Sections of the Act


Text from the Regulation

"bus operator" means a person who operates a motor vehicle that

(a) seats more than 7 passengers,

(b) is available for use by the public, and

(c) is operated for or on behalf of a person who charges or collects compensation for transporting passengers in that motor vehicle;


Policy interpretation

Under this definition a “bus operator’ operates a motor vehicle that:

  • Seats more than 7 passengers
  • Is available for use by the public; and
  • Charges compensation for transporting passengers in the motor vehicle

This definition does not include bus operators employed by a company transporting its own employees to and from work locations, such as a farm labour contractor operation, logging company, or mining operation.

Example: An employee drives a mini-van that seats 8, 1 driver and 7 passengers and charges those passengers a fee for transporting them. The employee would not be considered to be a bus operator as the motor vehicle does not seat more than 7 passengers.

Example: An employee drives a 12-seat passenger van. Their employer supplies the van in order to pick up other co-workers to work at various work locations at no charge to the employees. The employee would not be considered to be a bus operator as the van is not available for public use and/or the passengers are not charged a fee for the transportation.

Section 44(a) of the Regulation identifies when a “bus operator” is excluded from overtime pay under s.40 of the Act.



 

Text from the Regulation

"charity" means

(a) a charity as defined in the Income Tax Act (Canada), or

(b) a society incorporated under the Society Act


Policy interpretation

Section 149.1 of the Income Tax Act (Canada) defines a charity as a "charitable organization or charitable foundation." A charitable organization is defined in the Income Tax Act (at time of writing) as:

an organization, whether or not incorporated,

(a) all the resources of which are devoted to charitable activities carried on by the organization itself,

(b) no part of the income of which is payable to, or is otherwise available for, the personal benefit of any proprietor, member, shareholder, trustee or settler thereof,

(c) more than 50% of the directors, trustees, officers or like officials of which deal with each other and with each of the other directors, trustees, officers or officials at arm ’s length, and

(d) where it has been designated as a private foundation or public foundation pursuant to subsection (6.3) of this section or subsection 110(8.1) or (8.2) of the Income Tax Act, chapter 148 of the Revised Statutes of Canada, 1952, or has applied after February 15, l984 for registration under paragraph 110(8)(c) of that Act or under the definition "registered charity" in subsection 248(1), not more than 50% of the capital which has been contributed or otherwise paid into the organization by one person or members of a group of persons who do not deal with each other at arm’s length and, for the purpose of this paragraph, a reference to any person or to members of a group does not include a reference to Her Majesty in right of Canada or a province, a municipality, another registered charity that is not a private foundation, or any club, society or association described in paragraph 149(1)(1).

The phrase "charitable foundation" is defined in the Income Tax Act (at time of writing) as:

a corporation or trust that is constituted and operated exclusively for charitable purposes, no part of the income of which is payable to, or is otherwise available for, the personal benefit of any proprietor, member, shareholder, trustee or settlor thereof, and is not a charitable organization.

Section 2 of the Society Act states:

  1. A society may be incorporated under this Act for any lawful purpose or purposes such as a national, patriotic, religious, philanthropic, charitable, provident, scientific, fraternal, benevolent, artistic, educational, social, professional, agricultural, sporting or other useful purposes, but not for
    1. the operation of a boarding home, orphanage or other institution for minors, or the supplying of any other form of care for minors without the written consent of the Superintendent of Family and Child Services designated under the Family and Child Service Act;
    2. the ownership, management or operation of a hospital without the written consent of the minister;
    3. the ownership, management or operation of a social club without the written consent of the minister;
    4. the purpose of paying benefits or rendering services as described in section 14 without the written consent of the Superintendent of Financial Institutions;
    5. any purpose without the consent of an existing society should the registrar require it; or
    6. for the purpose of carrying on a business, trade, industry or profession for profit or gain.
  2. Carrying on a business, trade, industry or profession as an incident to the purposes of a society is not prohibited by this section, but a society shall not distribute any gain, profit or dividend or otherwise dispose of its assets without receiving full and valuable consideration, to a member or members of the society, except during winding up or on dissolution and then only as permitted by section 73.

The word "charity" is referred to in the Regulation at:

  • Section 34 (r), exclusions from Part 4 of the Act
  • Section 45, directors and officers of charities excluded from liability under section 96 of the Act

Related information

Employment Standards Tribunal Decisions

  • West Vancouver Notes & Crafts Society, BC EST #D447/97

Sections of the Act

Sections of the Regulation

Other

  • Income Tax Act
  • Society Act

Text from the Regulation

(3) For the purpose of section 52 of the Act, “employment year” means a year beginning on a common date that is used by an employer to calculate family responsibility leave for all employees under section 52 of the Act, so long as this does not result in a reduction of any employee’s rights under that section.


Policy interpretation

It explains the process that an employer must follow when establishing a common date for calculating family responsibility leave entitlement under s.52 of the Act. An employee’s rights under s.52 must not be reduced because an employer calculates family responsibility leave on a common date.



 

Text from the Regulation

(2) In section 1 of the Act, in the definition of “temporary layoff”, “exceeds” means exceeds by not more than 24 hours.


Policy interpretation

This section explains when a temporary layoff becomes termination of employment.

In s.1 of the Employment Standards Act, the definition of “temporary layoff” means:

  1. In the case of an employee who has a right of recall, a layoff that exceeds the specified period within which the employee is entitled to be recalled to employment, and
  2. In any other case, a layoff of up to 13 weeks in any period of 20 consecutive weeks;

For the purposes of the definition of “temporary layoff” in the Act, subsection (a) applies to all unionized employees with a right of recall in a collective agreement. Under section 1(2) of the Regulation, “exceeds” means the specified recall cannot be exceed by more than 24 hours.

An employee’s employment is considered terminated if they are not recalled within 24 hours after their specified recall date.



Text from the Regulation

"farm worker" means a person employed in a farming, ranching, orchard or agricultural operation and whose principal employment responsibilities consist of

(a) growing, raising, keeping, cultivating, propagating, harvesting or slaughtering the product of a farming, ranching, orchard or agricultural operation,

(b) clearing, draining, irrigating, or cultivating land,

(c) operating or using farm machinery, equipment, or materials for the purposes of paragraph (a) or (b), or

(d) direct selling of a product referred to in paragraph (a) if the sales are done at the operation and are only done during the normal harvest cycle for that product,

but does not include any of the following:

(e) a person employed to process the products of a farming ranching, orchard or agricultural operation other than to do the initial washing, cleaning, sorting, grading, or packing of

(i) an unprocessed product of the operation during the normal harvest cycle for that product, or
(ii) during the same harvest cycle referred to in subparagraph (i), the same or similar unprocessed product purchased by the operation from another farming, ranching, orchard or agricultural operation;

(f) a landscape gardener or a person employed in a retail nursery;

(g) a person employed in aquaculture.


Policy interpretation

“Farm worker” includes a person employed in various farming, ranching, orchard or agricultural operations including, but not limited to:

  • Dairy operations
  • Mushroom operations
  • Field crop operations
  • Vineyard operations
  • Greenhouse operations (production/growing)
  • Ranching including: raising or keeping game under the Game Farm Act, by a person licensed to do so under that Act; raising or keeping fur-bearing animals under the Fur Farm Act, by a person licensed to do so under that Act
  • Poultry operations
  • Livestock operations
  • Orchard operations
  • Turf farms
  • Growing outdoor ornamental flowers and plants
  • Christmas tree growing operations

Farming, ranching, orchard or agricultural operations do not include:

  • Forest practices as defined in the Forest and Range Practices Act (except grazing or hay cutting)
  • Agri-tourism (service part of an operation) such as trail rides, corn mazes, bed and breakfasts, restaurants or wine stores
  • Breeding pets or operating a kennel or aviary
  • Processing of farm products
  • Auction halls

Persons employed in an auction hall are not considered to be farm workers within the meaning of the Regulation. Activity taking place in an auction hall is not considered to be farming or ranching. It is a medium to buy and sell animals or other products of the operation.

“Farm worker” means an employee whose principal employment duties consist of the following types of work:

(a) Growing, raising, keeping, cultivating, propagating, harvesting or slaughtering the product of a farming, ranching, orchard or agricultural operation;

  • An employee who cuts and wraps a slaughtered product would not be a farm worker since processing is not included in the definition.

(b) Clearing, draining, irrigating or cultivating land for a farming, ranching, orchard or agricultural operation;

(c) Operating or using machinery, equipment or materials for the purposes of (a) and (b) above.

Examples:

  • An employee who operates machinery that cuts and lifts grass at a turf farm is a “farm worker”
  • An employee who drives a truck that transports a product from an operation to market is not a “farm worker”

(d) Selling the product of a farming, ranching, orchard or agricultural operation

  • At the operation
  • During the normal harvest cycle for that product

Examples:

  • An employee of a blueberry farm selling blueberries at the farm during harvest time is a “farm worker”
  • An employee of a farm selling jams and preserves at the farm made from the produce grown at the farm is not a “farm worker”
  • An employee selling strawberries at a nearby farmer’s market would not be a “farm worker” since the work is not being performed at the strawberry farm

A “farm worker” also includes a person whose primary employment responsibilities consist of the initial washing, cleaning, sorting, grading or packing of an:

  • Unprocessed product of that operation; or
  • Of the same or a similar unprocessed product purchased from another operation;
  • During the normal harvest cycle for that product.

Examples:

  • An orchard produces apples and during the normal apple harvest cycle purchases pears from another operation. Employees of the operation employed to wash, clean, sort, grade or pack the apples and pears are “farm workers” since pears are a similar unprocessed product to the apples produced by the operation.
  • A company in the business of buying and packing various crops for the export market employs a person to pack unprocessed blueberries for shipping. The employee is not a “farm worker” since the employer is not a farming, ranching, orchard or agricultural operation, the employee is not employed by the operation producing the products, and the work is not performed at the operation.

A “farm worker” does not include:

(a) A person employed to process farm, ranch, orchard or agricultural products to an altered or different state. Example: A person employed to do things such as drying herbs, juicing, wine making, cheese making, canning or preserving fruit products is not a “farm worker”.

(b) A landscape gardener or person employed in a retail nursery, even if it is located at the same site as an agricultural operation.

(c) A person employed in aquaculture.  Webster’s Dictionary defines “aquaculture” as “the regulation and cultivation of water plants and animals for human use or consumption”.  

The definition of “farm worker” does not include a person whose principal employment responsibilities on the farm include things such as:

  • Office duties such as receptionist, clerk and bookkeeper
  • Repairing and maintaining farm equipment
  • Driving a truck to haul farm products to market
  • Processing the operation’s product
  • Washing, cleaning, sorting, grading or packing unprocessed products purchased from other operations that are not similar to those grown by the operation where the work is being done

Employee of a contractor: An employee of a contractor, other than a farm labour contractor, does not become a “farm worker” when a job is being done on a farming, ranching, orchard or agricultural operation. To be considered a "farm worker" a person must be employed by the operation and the principal employment duties must consist of one or more of those listed in the regulation.

Example:

  • A contractor is hired to install irrigation equipment. The employee of the contractor does not become a "farm worker" while working on an agricultural operation. A contractor who contracts with agricultural operations in addition to non-agricultural clients, including industrial and residential, is not exempt from the overtime and statutory holiday provisions of the legislation.
  • An employee of a "farm labour contractor" is a "farm worker" since by definition under the Act the employee can only work in an agricultural operation and is under the direction and control of the agricultural operation when planting, cultivating or harvesting an agricultural product.

Note: The director will determine whether or not an “operation” is included in the definition of “farm worker” and whether an employee of such an operation is performing the work of a “farm worker” through investigation on a case-by-case basis.

Exclusions from the Employment Standards Act: Under s.34.1 of the Regulation, “farm workers” are excluded from:

  • Part 4 of the Act, (except s.39) Hours of Work and Overtime;
  • Part 5 of the Act, Statutory Holidays

Vacation pay included in piece work rate for certain farm workers: Under s. 18(1) of the Regulation, vacation pay is included in the pieces rates listed for the hand harvesting of various berry, fruit or vegetable crops. The daffodil piece rate does not include vacation pay



Text from the Regulation

"first aid attendant" means a person who

(a) is a first aid attendant within the meaning of section 3.14 of the Occupational Health and Safety Regulation, and

(b) is employed by an employer who is required to provide first aid services under the Workers Compensation Act;


Policy interpretation

The eligibility criteria in (a) and (b) must be met before an employee can be defined as a “first aid attendant”.

The Occupational Health and Safety Regulation defines a "first aid attendant" as "a person who holds a valid first aid certificate issued by the Board or by a person recognized by the Board and who is designated as a first aid attendant by the employer".

Section 44(d) of the Employment Standards Regulation identifies when a “first aid attendant” is excluded from overtime pay under section 40 of the Act.

See also Appendix 3 - Oil and Gas Well Drilling and Servicing Occupations - Hourly Rate of Pay.


Related information

Sections of the Regulation

Other

  • Worker’s Compensation Act, [RSBC 1996] Chapter 492
  • Worker's Compensation Act Occupational Health and Safety Regulation

Text from the Regulation

"fish camp worker" means a person employed at a camp as a broker to purchase fish and to arrange for their transportation to a processing plant;


Policy interpretation

Section 34(h) of the Regulation excludes a “fish camp worker” ” from the provisions of Part 4 of the Act, Hours of Work and Overtime, when employed in connection with a commercial fishing operation. This applies only to a broker.



 

Text from the Regulation

"fisher" means a person

(a) who is employed on a vessel engaged in commercial fishing, and

(b) whose remuneration is a share or portion of the proceeds of a fishing venture,

but does not include a person employed in aquaculture;


Policy interpretation

A person employed on a commercial fishing vessel who receives a share or portion of the proceeds from a fishing venture is a “fisher” for purposes of this definition. “Proceeds” is not defined in the Act or the Regulation. As the definition of “proceeds” can be either a gross amount or a net amount, the parties must be sure they clearly understand what the employee’s share is based on. 

Example: A person is responsible for the operation of a commercial fishing vessel which operates with 5 other crew. This person is paid 16% of whatever profit the vessel makes per trip. This person is a fisher because they are employed on a vessel engaged in commercial fishing and receives a portion of the proceeds from the fishing venture.

A person employed in aquaculture is not included in the definition of “fisher”. Aquaculture includes fish farms. A person employed at a fish farm is not a “fisher” for purposes of this definition. The Provincial Fisheries Act defines “aquaculture as follows:

aquaculture” means the growing and cultivation of aquatic plants, as defined in section 12, or fish, for commercial purpose, in any water environment or in human made containers of water, and includes the growing and cultivation of shellfish on, in or under the foreshore or in water”.

Commercial fishing” is not identified in the Employment Standards Act or Regulation. The provincial Fisheries Act adopts the concept of commercial fishing developed in the federal legislation. Under the federal Fisheries Act , in the context of licensing and regulating commercial fishing, a fishing vessel is defined as follows:

fishing vessel” means any vessel used, outfitted or designed for the purpose of catching, processing or transporting fish.

Under s.37 of the Regulation, “fishers” are excluded from the following provisions of the Act:

  • Section 16. Minimum Wage
  • Part 4. (except section 39), Hours of work and overtime
  • Part 5. Statutory Holidays
  • Part 7. Annual Vacation
  • Part 8. Termination of Employment


Text of the Regulation

"independent school" means the same as in the Independent School Act.


Policy interpretation

The term "independent school" in the Independent School Act means a school that is, or is to be, maintained and operated in British Columbia by an authority and:

(a) that offers an educational program to 10 or more school age students,

(b) that meets the requirements of section (2)(e) of the Schedule and otherwise qualifies for a certificate of group classification, or

(c) for which an authority holds a subsisting interim certificate issued under section 4 (2),

but does not include

(d) a public school or Provincial school, or

(e) a school that

(i) solely offers religious instruction,

(ii) solely offers language instruction,

(iii) solely offers a program of social or cultural activities,

(iv) solely offers a program of recreational or athletic activities, or

(v) is designated by an inspector.



Text of the Regulation

"live-in camp leader" means a person who

(a) is employed by a charity at a summer or seasonal camp for persons under 19 years of age,

(b) provides instruction and counselling to campers, and

(c) provides those services on a 24 hour per day live-in basis without being charged for room and board.


Policy interpretation

All the eligibility criteria in (a), (b), and (c) must be met before an employee can be defined as a “live-in camp leader”.

Example: An employee is employed by a charity to work at a summer camp. They are responsible for the care of a group of twelve-year-olds and archery instruction for other campers. They live on-site, are available 24 hours per day and are not charged for food or rent.

The employee meets the definition of a live-in camp leader as those in their care are under 19 years of age, the employee is available 24 hours per day, is not charged room and board and is employed by a charity.

A “live-in camp leader” is entitled to be paid a daily rate for work performed on any day, or portion of a day. s.16(2) of the Employment Standards Regulation establishes the minimum daily wage for a live-in camp leader.

Under s.34(y) of the Regulation, a “live-in camp leader” is excluded from Part 4 of the Act.



Text of the Regulation

"live-in home support worker" means a person who

(a) is employed by an agency, business or other employer providing, through a government funded program, home support services for anyone with an acute or chronic illness or disability not requiring admission to a hospital, and

(b) provides those services on a 24 hour per day live-in basis without being charged for room and board;


Policy interpretation

Definitions under the Employment Standards Regulation are interpreted narrowly because they take away benefits and protection conferred by the Act. All employment conditions, as described in the definition, must be met in order to qualify as a “live-in home support worker."

A live-in home support worker is entitled to be paid a daily rate for work performed on any day or portion of a day. Section 16(1) of the Employment Standards Regulation establishes the minimum daily wage for a live-in home support worker.

"Government Funded"

Government funding includes funds from Veteran Affairs, and Health, but not Workers Compensation, or ICBC. When funding comes from a number of sources, including government, if the majority of funding is government, the Director deems all funding to be government for the purposes of determining whether an employee is a live-in home support worker. A person can be a live in home support worker, therefore, even if some of the work performed is not funded through a government program.

For a home support service to be considered a "government funded program" either it must receive the majority of its funding directly from the government through a contractual arrangement for the provision of home support services, or it must be receiving indirectly monies that have been designated by government specifically for the purchase of home support services.

Example: A client receives $400.00 a month from Old Age Security (O.A.S.) and Guaranteed Income Supplement (G.I.S.). The client has no other source of income and purchases the services of a home support worker using only this income. The O.A.S. and G.I.S. income is not considered to be government funding as the client receives the income regardless of whether they purchased the home support services.

Example: A client is allocated $400.00 a month by a government agency to purchase home support services. If the client chooses to not purchase the services, they will not be paid the $400.00. This funding is considered to be government funding as the client only receives the money if the home support services are purchased."

"Acute or chronic illness or disability"

An acute or chronic illness or disability is considered as any condition that incapacitates a person. Disability can be mental or physical.

"Live-In"

"Live-in" does not mean permanently resides at the workplace. It is considered to mean that the employee stays at the workplace during their shift schedule, much like a municipal fire fighter.

Example: Three nights a week, an individual stays at the residence of mentally disabled person and provides care for that person. The individual’s wage is primarily funded by Veteran’s affairs to provide home support services, and partially from other sources. While at the residence, room and board are provided free of charge.

This individual is a live-in home support worker because the majority of their wages are from a government funded program, they are not charged room and board, they care for a mentally disabled person and when working, they live in the residence on a 24-hour per day basis.

Example: The child of an elderly person pays an individual to provide live-in care at the elderly person’s residence for 4 days per week. The individual is required to bring their own food while at the residence or is charged $5.00 for the cost of the food that they eat.

This individual is not a live-in home support worker because they are not provided free room and board.

Other related employees

Under the Employment Standard Act and Regulation, there are several different categories of employees who provide care and home services and these other types of employees should be distinguished from a "live-in home support worker". They include:·

  • Domestic
  • Night attendant
  • Residential care worker
  • Sitter

Related information

Employment Standards Tribunal Decisions

  • CSA Care and Share Agency Ltd., BC EST #D104/04
  • Karen Barnacle operating as Karen's Home Help Service, BC EST#D22/98
  • Mike Renaud, BC EST#D436/99

Sections of the Act

Sections of the Regulation


Text from the Regulation

"long haul truck driver" means a person employed to drive a truck usually for a distance exceeding a 160 km radius from their home terminal;


Policy interpretation

A long-haul truck driver usually drives a truck outside a radius of 160 km from their home terminal.

"Truck” is a motor vehicle larger than a van used to transport freight. Mini-vans and pick up trucks are not included in the definition; cube vans are. A tractor, used in combination with a trailer for road, and off-road, hauling of freight is a truck.

“Home terminal” refers to the place of business of a motor carrier at which a driver ordinarily reports for work.

“Radius” is the distance from the home terminal “as the crow flies”. It does not refer to the actual number of kilometers that a person drives on a given trip.

“Usually” refers to whether the truck driver’s regular practice is to make long haul or short haul trips. The designation as “short haul” or ”long haul” is dependent on a comparison of the time spent driving within or outside 160 km radius from the home terminal. For truck drivers that are employed to drive a truck, usually for a distance within a 160 km radius from their home terminal, refer to definition of “short haul truck driver” under this section.

For truck drivers that are employed to drive a truck, usually for a distance within a 160 km radius from their home terminal, refer to definition of “short haul truck driver” under this section.



 

Text from the Regulation

"manager" means

(a) a person whose principal employment duties consist of supervising or directing, or both supervising and directing, human or other resources, or

(b) a person employed in an executive capacity;


Policy interpretation

Subsection (a)

For purposes of this section, a “manager” includes employees whose principal responsibility is the supervision and/or direction of “human resources” (i.e., employees or contractors), or “other resources” (financial and material resources).

Principal "employment responsibilities”

Employment responsibilities of a manager include where the person exercises authority and discretion while performing certain actions or roles on behalf of the employer, and is personally accountable for the results. Accountability in this context is linked to the employer’s business objectives as opposed to the routine completion of a task. It is essential for the definition of “manager” that the responsibility that the employee has is principal to their employment.

A conclusion about whether the principal employment responsibilities consist of supervising and/or directing employees, or other resources, depends on a total characterization of that person’s responsibilities, and may include, but is not limited to:

  • The amount of time spent supervising and directing
  • The person's employment duties and the reasons for them
  • The degree to which the person exercises management power and authority and its impact on the business
  • The priority placed on the responsibilities by the employer
  • The nature and size of the business

"Supervising and/or Directing"

If a person is performing either supervising or directing functions as their principal employment duties they are considered to be a manager. Supervising and/or directing describes the function of overseeing and controlling activities of staff and business resources and accountable for the outcome of such activities including, but not limited to, responsibility for:

  • Hiring, supervising, evaluating, disciplining and terminating staff
  • Directing what work is to be done, how it is to be completed, when it is to be completed and being accountable for the outcome of such work (i.e. monitoring and evaluation)
  • Developing, delivering, and evaluating programs and services
  • Leading projects including strategic planning, budgeting, project monitoring and evaluation
  • Committing and/or authorizing the use of company resources
  • Preparing, delivering and evaluating business and marketing plans
  • Developing, monitoring, and evaluating financial plans including budgets, cost estimates and tenders

“Other resources” of the employer include:

  • Financial resources including budget planning, implementation, monitoring, and evaluation
  • Material resources including product or services, research and development, and marketing

Example: An employee works for a large retail chain as a Pharmacy Manager. The retail chain hires the employees they supervise. The employee is not a pharmacist but is responsible and accountable for supervising and directing the day-to-day activities of the department including staff. They are in charge of merchandising, advertising, budget and policy development and other administrative functions related to the operation of the pharmacy.

The employee is a manager as defined in this section.

Example: A project leader for a corporation is responsible and accountable for overseeing a contract to implement a new computer system including the purchase and installation of computer equipment. This individual has no employees reporting to them but is responsible for a large budget including the monitoring and evaluation of financial status reports while reporting to the executive vice president in charge of project management.

This individual is a manager as defined in this section.

Lead Hand or Shift Supervisor

An employee working as a lead hand or shift supervisor is usually not considered to be a “manager” because, while they may supervise the work of other employees on their particular shift, it generally is not their principal responsibility. In such instances they are generally not given the authority to determine staffing levels, discipline staff or commit company resources.

Example: An employee works as a shift supervisor in a fast food outlet. While they spend most of their time serving customers and taking cash, they are also in charge of three or four other employees. As shift supervisor, they assign duties from a list of routine tasks, deal with customer complaints, call in staff to fill in for staff absences, balance the cash at the end of the shift and lock the restaurant. The employee sometimes assists in interviewing job applicants but is not responsible for choosing who will be hired.

While the employee spends some time supervising staff, their principal duty is serving customers. They do not have sole responsibility for disciplining nor do they have a large degree of discretion to change work routines, decide on staffing levels or alter shift schedules.

The employee is not a manager as defined in this section.

Subsection (2)

“Executive capacity” includes: The exercise of substantial authority in making key decisions critical to the business such as:

  • How many employees are to be employed
  • What product should be purchased or produced
  • What services should be provided
  • From whom should supplies be purchased
  • At what price should products be sold

Duties that involve active participation in the control, supervision, and administration of business affairs.

A person employed in an executive capacity is considered to be a “controlling mind” of the business. They need not be the owner. They may have titles such as General Manager, Manager of Operations, comptroller, or Director.

Job title or payment method does not define “manager:” The fact that a person is classified as a manager, or is identified by other employees as one, does not of itself mean that the person is a manager. The form of payment (salary, hourly wage, commission) is not necessarily indicative of a “manager."

Manager may be entitled to extra pay for extra work: Although a manager is excluded from the hours of work and overtime provisions of the Act, they are entitled to be paid for all hours worked, according to their terms of employment. In some cases this could result in a manager being entitled to additional compensation. Where there is evidence to support findings that the employer and the employee agreed that a specific number of hours of work would be compensated by a specific amount of wages, the employee would be entitled to extra wages for the extra time worked based on their regular rate of pay.

Example: An employee accepts an offer to work for $50,000 a year as a "manager". Part of the agreement is that the annual salary is to cover all hours worked. Generally speaking, the employee works 45 hours a week. During the spring, they work 55 hours a week.

The employee is not entitled to extra pay for the additional hours worked as they agreed to be paid the $50,000 a year regardless of the number of hours worked. If they had agreed to work for $50,000 a year based on a 45 hour work week, the employee may have been entitled to further compensation.

Exclusions from the Employment Standards Act

Under s.36 of the Employment Standards Regulation, a “manager” is excluded from Statutory Holidays.

Under s.34(f) of the Employment Standards Regulation, a “manager” is excluded from the hours of work and overtime requirements of the Act.


Related information

Employment Standards Tribunal Decisions

  • F.S.I. Culvert Inc. BC EST#D301/97
  • Dusty Investments Inc. operating as Honda North, BC EST#D43/99
  • Kamloops Golf and Country Club Limited,BC EST#D278/01
  • 429485 B.C. Limited Operating Amelia Street Bistro; BC EST #D479/97
  • Northland Properties Ltd., BC EST #D423/98
  • Executive Capacity : Benny’s Bagels Ltd. BC EST#D387/98
  • Terri McConkey, BC EST#D417/99
  • Extra hours extra pay: BC EST #404/98 and #383/02

Sections of the Act

Sections of the Regulation

Factsheets


Text from the Regulation

"newspaper" means a publication

(a) published on a regular schedule at least once a month in a newspaper format, and

(b) with at least 25% of its content composed of editorials, news and articles of local or common interest other than advertising,

and includes advertising circulars and advertising materials known as flyers that are sold or given away as part of a newspaper;


Policy interpretation

A newspaper is a publication that is composed of at least 25% of news and editorial content and articles of local or common interest, other than advertising. In addition, it must be published on a regular schedule, at least once a month. A newspaper may include advertising circulars and/or materials known as flyers.

There are special rules for newspaper carriers regarding entitlements under the Employment Standards Act. Refer to s.37.4 of the Regulation.

Refer also to definition of “newspaper carrier” in this section of the Regulation.

Example: A flyer on its own does not count as a newspaper because it does not contain at least 25% editorial, news and local or common interest content. If a flyer were included in a publication with a newspaper format, which was composed of at least 25% of the content specified above, then the flyer and newspaper together would be considered a single newspaper.


Related information


Text from the Regulation

"newspaper carrier" means a person who sells or delivers newspapers directly to customers or households, but does not include a person who is engaged in bulk delivery;


Policy interpretation

To be considered a “newspaper carrier” the employee must be delivering a “newspaper” as defined in this section of the Regulation.

Under s.37.4(1) a newspaper carrier who is enrolled in, or on vacation from a primary or secondary school and is employed as a newspaper carrier for 15 hours or less in a week, is exempt from the Act in its entirety.

Under s.37.4(2) a person employed as a newspaper carrier for 15 hours or less in a week, is exempt from the following sections of the Act:

  • Section 33. Split shifts
  • Section 34 Minimum daily hours
  • Section 36 Hours free from work

Example: The person employed to drop off or deliver newspapers to newspaper carriers is not delivering directly to a customer or household and therefore is not a “newspaper carrier”.



Text from the Regulation

"night attendant" means a person who

(a) is provided with sleeping accommodation in a private residence owned or leased or otherwise occupied by a disabled person or by a member of the disabled person ’s family, and

(b) is employed in the private residence, for periods of 12 hours or less in any 24 hour period, primarily to provide the disabled person with care and attention during the night,

but does not include a person employed in a hospital or nursing home or in a facility designated as a community care facility under the Community Care Facility Act or as a Provincial mental health facility under the Mental Health Act or in a facility operated under the Continuing Care Act;


Policy interpretation

Definitions under the Employment Standards Regulation are interpreted narrowly because they take away benefits and protection conferred by the Act. All employment conditions, as described in the definition, must be met in order to qualify as a “night attendant."

Under the Employment Standard Act and Regulation, there are several different categories of employees who provide care and home services and these other types of employees should be distinguished from a “night attendant”. They include:

  • Domestic
  • Live-in home support worker
  • Residential care worker
  • Sitter

Example: An employee works in the private home of a disabled person for periods of 9 hours per night. Their primary duties while at the residence include assisting the disabled person with their personal needs. They are paid for their services by the disabled person’s family, and are provided with a room in the residence to sleep.

This person is a night attendant because they work for periods of less than 12 hours in 24 overnight at the residence, are provided with somewhere to sleep and their primary duties are to provide the disabled person with care and attention during the night.

Note: Section 34(w) of the Regulation excludes a “night attendant” from the hours of work and overtime provisions of the Act.



Text from the Regulation

"prime lending rate" means the prime lending rate of the principal banker to the government;


Policy interpretation

Under s.25 of this Regulation, interest on money owing by an employer is calculated based on the “prime lending rate”, in accordance with the above definition.



Text from the Regulation

"resident caretaker" means a person who

(a) lives in an apartment building that has more than 8 residential suites, and

(b) is employed as a caretaker, custodian, janitor or manager of that building;


Policy interpretation

For purposes the Act, a resident caretaker must meet the criteria set out in (a) and (b) of the definition.

A “resident caretaker” must live in the apartment building. This means the apartment building is the usual and normal domicile of the person.

What is an apartment building? Any building, with more than 8 residential suites, that has the appearance and characteristics of an apartment building, such as common entry, and hallways, is considered by the director to be an apartment building. It should be noted that the caretaker’s unit is included when determining the number of suites.

  • A group of buildings that are in close proximity (within easy walking distance of each other), are considered to be “an apartment” for purposes of the Act. The total number of apartment suites in all apartment buildings in the complex will determine the amount of the resident caretaker minimum wage. Often such complexes are adjacent to each other on the same lot, with a common swimming pool, and recreational area.
  • An apartment building that is strata title is considered an apartment building for the purposes of the Act. The director does not distinguish on the basis of unit ownership. Whether an apartment building has one owner or a number is not a consideration. Whether the units are lived in by their owners or rented out to the public is not a consideration for the director.
  • A townhouse is not an apartment building

What is a caretaker, custodian, janitor or manager (of the building)?

A resident caretaker is available to perform duties during all designated hours. In addition to the requirement to reside at the workplace, the other consideration is the nature of work performed.

The work normally associated with a resident caretaker includes, but is not limited to, the following:

  • General light cleaning of the property (vacuuming hallway carpets)
  • Light maintenance (replacing burned out lights)
  • Preparing suites for rent (steam cleaning carpets, painting walls, cleaning ovens and such like heavy cleaning and light maintenance), or arranging for same
  • Showing suites to prospective tenants
  • Collecting rent from tenants
  • Attending to any emergencies
  • Watering and mowing lawn
  • Clearing snow
  • Arranging for garbage disposal
  • Arranging for removal of vehicles parked on property without authorization.

There can be more than one resident caretaker to an apartment building. In some cases, an employer may choose to have a “day” or an “evening” resident caretaker, if they meet the criteria as described in the definition.

Employer must post work schedule

Under subsection 35(2) of this Regulation, an employer must post a caretaker’s work hours and days off work and also give the caretaker a copy of the schedule.

Hours free from work

Under subsection 36(1) of the Employment Standards Act, a resident caretaker is entitled to at least 32 consecutive hours free from work each week, or they are entitled to pay equal to one and-a-half times their regular wage for time worked during this 32-hour period.

Exclusion from certain sections of the Act

Under subsection 35(1) of the Regulation, Part 4 of the Act, (except ss. 36 and 39) does not apply to a resident caretaker.

Minimum wage

In accordance with s.17 of the Employment Standards Regulation a resident caretaker must be paid at least the resident caretaker minimum wage.

Statutory holidays

A resident caretaker is entitled to Statutory Holidays under Part 5 of the Act.


Related information

Employment Standards Tribunal Decisions

  • Nacel Properties, BC EST #D160/01
  • Thomas Louis Harrison and Maartha Lander, BC EST #D224/96
  • Strataco Management Ltd., BC EST#D570/97
  • Dynamic Developments Ltd., BCEST #D86/02
  • Gateway West Management Corp., BC EST #D356/97

Related sections of the Act

Related sections of the Regulation

Others


Text from the Regulation

"residential care worker" means a person who

(a) is employed to supervise or care for anyone in a group home or family type residential dwelling, and

(b) is required by the employer to reside on the premises during periods of employment,

but does not include a foster parent, live-in home support worker, domestic or night attendant;


Policy interpretation

Definitions under the Employment Standards Regulation are interpreted narrowly because they take away benefits and protection conferred by the Act. All employment conditions, as described in the definition, must be met in order to qualify as a “residential care worker."

A residential care worker must be employed to:

  • Supervise or care for anyone in a group home or family type residential dwelling; and
  • Must reside on the premises during periods of employment

For purposes of this definition, “resides” refers to the “usual and normal domicile of the person." In this case, where the employee lives as opposed to stays while working.

Example: An employee is required to work from Monday to Thursday on a 24-hour basis in a group home for troubled teens. The employee provides counselling and supervises the preparation of meals and clean-up. The employee works a pattern of 4 days on followed by 4 days off. They are provided with a personal bedroom and bathroom in the group home to stay in while working. During their days off the employee returns to their own home.

This employee is not a residential care worker because, although they are required to stay on the premises during the course of their shifts and they are employed to care for and supervise persons in a group home, the group home is not where the employee resides. In order for the employee to meet the definition of a Residential Care Worker they must reside in the group home or a family type dwelling for the whole duration of their employment, not just during a series of work shifts.

Exclusion from certain sections of Act

Section 34(x) of the Regulation excludes a “residential care worker” from the hours of work and overtime provisions of Part 4 of the Act.

Rest periods

Under s.22 of the Regulation there are special rules regarding rest periods for a residential care worker.

Personal care attendants

Under the Employment Standard Act and Regulation, there are several different categories of employees who provide care and home services. Under the definition of “residential care worker” certain persons are specifically excluded from the category of "residential care worker." They include:

  • “Domestic” (See s.1, Employment Standards Act)
  • “Live-in home support worker” (See s.1of the Employment Standards Regulation)
  • “Night attendant” (See s.1of the Employment Standards Regulation)
  • “Sitter” (See s.1of the Employment Standards Regulation)
  • “Foster parent” (a person charged with the responsibility of caring for a child while that child is in the custody of the Superintendent of Family and Child Services. The Director is of the view that foster parents are members of the community who are performing a civic service by providing a home to a child or children in certain circumstances and conditions, for which they receive allowances to defray the cost of associated with this service. They are not, in her view, employees within the meaning of the Act.)


Text from the Regulation

short haul truck driver” means a person employed to drive a truck, usually for a distance within a 160 km radius of their home terminal;


Policy interpretation

A short haul truck driver usually drives a truck inside a radius of 160 km from their home terminal.

Truck” is a motor vehicle larger than a van used to transport freight. Mini-vans and pick up trucks are not included in the definition; cube vans are. A tractor, used in combination with a trailer for road, and off-road, hauling of freight is a truck.

Home terminal” refers to the place of business of a motor carrier at which a driver ordinarily reports for work.

Radius” is the distance from the home terminal “as the crow flies”. It does not refer to the actual number of kilometres that a person drives on a given trip.

Usually” refers to whether the truck driver’s regular practice is to make long haul or short haul trips. The designation as “short haul” or ”long haul” is dependent on a comparison of the time spent driving within or outside 160 km radius from the home terminal.

For truck drivers that are employed to drive a truck, usually for a distance exceeding a 160 km radius from their home terminal, refer to definition of “long haul truck driver” under this section.



Text from the Regulation

"silviculture worker" means a person who is:

(a) working in the silviculture industry

(b) paid primarily on a piece rate basis, and

(c) is involved in reforestation field work including clearing brush, cone picking, creek cleaning, harvesting seeds, applying herbicide, reclamation work, herding sheep, site preparation, stand sanitation, building trails, fertilizing, girdling, planting, pruning, spacing or distributing trees, weeding, or supervising any of these field activities;


Policy interpretation

Subsection (a)

Silviculture involves reforestation workers performing work in the various activities as set out in subsection (c) in this definition.

There are special rules and exclusions from provisions of the Employment Standards Act for silviculture workers, pursuant to s.37.9 of the Employment Standards Regulation.

It should be noted that a silviculture “manager” is treated in the same manner as any “manager”. A manager is excluded from Parts 4 and 5 of the Act. A working supervisor who spends the majority of their time performing the same work as the employees they supervise would not be considered a “manager” for purposes of the Act.

Subsection (b)

“Piece rate basis” means the rate of pay is based on a measurable quantity of work completed. Piece rates must meet or exceed minimum wage. “Primarily” means that at least 75% of wages for silviculture work are paid on an incentive basis.

Employees who are paid primarily by the hour, by the day or on a salary basis are not considered piece rate workers and do not qualify as a “silviculture worker”.



 

Text from the Regulation

"sitter" means a person employed in a private residence solely to provide the service of attending to a child, or to a disabled, infirm or other person, but does not include a nurse, domestic, therapist, live-in home support worker or an employee of

(a) a business that is engaged in providing that service, or

(b) a day care facility;


Policy interpretation

Definitions under the Employment Standards Regulation are interpreted narrowly because they take away benefits and protection conferred by the Act. All employment conditions, as described in the definition, must be met in order to qualify as a “sitter."

A "sitter" is employed solely to attend to a child, or a disabled, infirm or other person in a private residence.

A “sitter” does not include an employee of:

  • A business engaged in providing this service; or
  • A day care facility

Certain care workers not considered a “sitter”

Under the definition of “sitter” certain other persons are also specifically excluded from this definition. They are:

  • Nurse
  • “Domestic”
  • Therapist
  • “Live-in home support worker”

Example: If the primary employment duties were to look after a child including performing other duties such as cooking the family dinner and grocery shopping, the employee would not be considered a “sitter” because the sole duties were not restricted to attending to the child.

In-home personal care

A "sitter" also includes any personal care giver who, in a private residence, provides the service of attending to another person, regardless of the nature of the responsibilities. The duties of a sitter typically include bathing, dressing, feeding, lifting from chair to bed, tidying up, accompanying on outings, and generally being there to help if an emergency arises. The duties could also include more specialized care and require training, such as trachea care, suctioning, bowel care and catheterization.

In short, employees who provide in-home personal care, regardless of extent or type, unless they are nurses, or performing the work in occupations defined in section 1 of the Act or Regulation, are sitters.

Example: An individual is hired by another person to care for them in their own home. The employee’s regular duties include preparing meals, assisting their employer from bed to their wheelchair, bathing them and providing bowel and catheter care.

Despite performing specialized duties, this employee is a "sitter" because all of her duties consist of attending to the employer's personal care and they are not an employee of a business engaged in providing personal care services.

A “sitter”, as defined in this section, is excluded from Act

Under Regulation s.32(1)(c) the Act does not apply to a “sitter”.


Related information

Employment Standards Tribunal Decisions

  • Rhonda D. McLellan, BC EST #D438/98
  • Tammy Wood, BC EST #D176/00
  • Mike Renaud, BC EST #D436/99

Sections of the Regulation


Text from the Regulation

"Talent Agency" means a person who, for a fee, engages in the occupation of offering to procure, promising to procure, attempting to procure or procuring employment for actors, performers, extras, or technical creative film persons.


Policy interpretation

Refer to definition of “talent agency” as defined in s.1 of the Employment Standards Act.


Text from the Regulation

"taxi driver" means "a person employed to drive a taxi"


Policy interpretation

Exclusions from the Act

There are special rules and exclusions from provisions of the Act for taxi drivers, pursuant to Section 37.1 of the Employment Standards Regulation.


Related information

Sections in the Regulation


 

Text from the Regulation

"teacher" means the same as in the School Act and in the Independent School Act


Policy interpretation

In order to be a "teacher" under the School Act a person must:

  • Hold a certificate of qualification,
  • Be employed by a board, and
  • Provide an educational program to students in a school.

The definition of "independent school" in the Independent School Act does not include a school that solely offers religious or language instruction. Schools that provide tutorial services or other supplemental educational services to school age children are also not included by designation of the inspector.

Example: An employee works for a local school board to provide educational instruction to children at an elementary school. They hold a teaching certificate from a university.

The employee is a teacher under the Regulation because they meet the definition of "teacher" in the School Act. They hold a certificate of qualification and are employed by a board to provide an educational program to students in a school.

Example: An employee works for a company that provides after-school tutorial services to children who need help with math and reading. The employee holds a teaching certificate.

The employee is not a teacher under the Regulation because:

  • They do not meet the definition of "teacher" in the School Act. Although they have a teaching certificate, they are not employed by a board to provide an educational program to students in a school; and
  • They do not teach in a facility that is included in the definition of "independent school" contained in the Independent School Act.


Text from the Regulation

"technical creative film person" includes a film director, director of photography, production designer, art director, person involved in writing or rewriting scripts, hair stylist, make-up artist, costume designer, or animal coordinator involved in the production of a film, video, television show or television commercial.


Policy interpretation

A licensed talent agency may receive wages from employers on behalf of a client, including a technical creative film person, who has performed work in the film and television industry and the agency may deduct a commission from those wages in accordance with s.38.1 of this Regulation.



Text from the Regulation

"tender vessel worker" means a person employed on a vessel to collect and transport fish;


Policy interpretation

A “tender vessel worker” must be employed on a vessel outfitted or designed for the purpose of collecting and transporting fish.

Under s.34(g) of this Regulation, a “tender vessel worker” is excluded from Part 4 of the Act.


Related information


Text from the Regulation

"textile worker" means a person employed to make fabrics or fabric articles, including clothing, in a private residence.


Policy interpretation

Under s.15 of the Act a person employing a textile worker in a private residence must register that worker with the director.

Textile workers are entitled to full coverage under the Employment Standards Act and Regulation.


Related information


Text from the Regulation

"wilderness guide" means a person employed primarily to guide, teach or assist one or more persons while those persons are engaged in recreational activities in a wilderness environment, including the following activities:

(a) back-country skiing, cat-skiing, heli-skiing and snowshoeing;
(b) biking;
(c) canoeing, kayaking, rafting and jet boating;
(d) dogsledding;
(e) hiking;
(f) horseback riding;
(g) mountaineering and rock climbing;
(h) operating all-terrain vehicles or snowmobiles;
(i) wildlife viewing

but does not include a fishing or hunting guide.


Policy interpretation

Section 34(a.1) of the Regulation excludes a “wilderness guide” from the provisions of Part 4 of the Act, Hours of Work and Overtime.


Related information

Sections of the Regulation