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Scope of This Act - Act Part 1, Section 3

Last updated on May 23, 2023

Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information

Summary

This section provides that the Employment Standards Act applies to all provincially regulated employees other than those excluded by regulation, and specifies how the Act relates to employees covered by a collective agreement. 

Text of Legislation

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

(2) If a collective agreement contains any provisions respecting a matter set out in column 1 of the following table, and the provisions, when considered together, meet or exceed the requirements, when considered together, of the Part or section of this Act specified opposite the matter in column 2 of the table, those provisions of the collective agreement replace the requirements of that Part or section of the Act  in respect of employees covered by the collective agreement:

 
Column 1
Matter		 Column 2
Part or Section
Special clothing Section 25 (1) or (2)
Hours of work or overtime Part 4
Statutory holidays Part 5
Annual vacation or vacation pay Part 7
Seniority retention, recall, termination of employment or layoff Section 63

(2.1) Despite subsection (2), any provisions of a collective agreement respecting statutory holidays only replace the requirements of Part 5 of this Act as that Part applies to statutory holidays other than the National Day for Truth and Reconciliation.

(3) If a collective agreement contains no provisions respecting a matter set out in column 1 of the following table, or contains any provisions respecting a matter set out in column 1 that, when considered together, do not meet or exceed the requirements, when considered together, of the Part or section of this Act specified opposite the matter in column 2 of the table, that Part or section of the Act is deemed to be incorporated in the collective agreement as part of its terms:

 
Column 1
Matter		 Column 2
Part or Section
Special clothing Section 25 (1) or (2)
Hours of work or overtime Part 4, except s.37
Statutory holidays Part 5
Annual vacation or vacation pay Part 7
Seniority retention, recall, termination of employment or layoff Section 63

(4) Repealed

(5) Repealed

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

section 3 (2) [when provisions of the collective agreement replace requirements of this Act];

section 3 (2.1) [collective agreement does not replace Part 5 in relation to National Day for Truth and Reconciliation];

section 3 (3) [when requirements of this Act are deemed incorporated into collective agreements];

section 9 [employment of children];

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

section 16 [employers required to pay minimum wage];

section 17 [paydays];

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

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

section 20 [how wages are paid];

section 21 [deductions];

section 22 [assignment of wages];

section 23 [employer’s duty to make assigned payments];

section 24 [how an assignment is cancelled];

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

section 27 [wage statements];

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

section 28 (2) [payroll record requirements];

section 30.3 [gratuities];

section 30.4 [redistribution of gratuities];

Part 5 [Statutory Holidays], as that Part applies to the National Day for Truth and Reconciliation;

Part 6 [leaves and jury duty];

section 64 [group terminations];

section 65 [exceptions to section 64];

section 67 [rules about notice of termination];

section 68 [rules about payments on termination].

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

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

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

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

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

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

Policy Interpretation

Subsection (1)

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

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

  • Is an employee excluded from the provisions of the Act under the Employment Standards Regulation or another statute?

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

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

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

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

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

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

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

Section 91 of the Constitution Act sets out areas of exclusive federal jurisdiction. The Canada Labour Code has exclusive jurisdiction over federally regulated industries, which include:

Federally regulated private sectors:

  • air transportation, including airlines, airports, aerodromes and aircraft operations including passenger and freight, as well as charter flying and pilot training (but not stores/shops at airports)
  • banks, including authorized foreign banks (but not credit unions)
  • grain elevators, feed and seed mills, feed warehouses and grain-seed cleaning plants
  • Indigenous band councils (including certain community services on reserve)
  • most federal Crown corporations, for example, Canada Post Corporation
  • port services, marine shipping, ferries, tunnels, canals, bridges and pipelines (oil and gas) that cross international or provincial borders
  • radio and television broadcasting
  • railways that cross provincial or international borders and some short-line railways
  • road transportation services, including trucks and buses, that cross provincial or international borders
  • telecommunications, such as, telephone, Internet, telegraph and cable systems
  • uranium mining and processing and atomic energy
  • any business that is vital, essential or integral to the operation of one of the above activities

Federally regulated public sectors:

  • the federal public service including Armed Forces
  • Parliament (such as, the Senate, the House of Commons and the Library of Parliament)

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

For further information on federal jurisdiction, visit the Government of Canada's Labour Programs page.

  • Does the person work outside of the Province?

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

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

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

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

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

Subsection (2), (2.1) and (3)

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

If a collective agreement contains any provision respecting the following matters, and the provisions meet or exceed the requirements of the Act, the corresponding parts of the Act do not apply:

  • Special clothing – Section 25 (1) or (2) of the Act does not apply;
  • Hours of work and overtime – Part 4 of the Act does not apply;
  • Statutory holidays – Part 5 of the Act does not apply, except regarding the National Day for Truth and Reconciliation;
  • Annual vacations – Part 7 of the Act does not apply;
  • Seniority retention, recall, termination or layoff – Section 63 of the Act (liability resulting from length of service) does not apply.

If a collective agreement does not contain any provision relating to one of these subject areas, or if they do not meet or exceed the requirements of the Act, the corresponding Part or section of the Act as specified above, except section 37, is deemed to be incorporated into the collective agreement.

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

Example

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

Subsection (6)

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

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

Subsection (7)

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

Subsection (8)

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

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

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

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

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

Subsection (9)

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

(a) a single arbitrator, or

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

Related Information

Employment Standards Tribunal Decisions

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

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

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

Court Decisions

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

Related sections of the Act or Regulation

ESA

ESR