Requirements of This Act Cannot Be Waived - Act Part 1, Section 4
This section provides that employers and employees cannot waive the minimum requirements of the Employment Standards Act and specifies that a provision of a collective agreement referred to in section 3(2) is not such a waiver.
4. The requirements of this Act and the regulations are minimum requirements and an agreement to waive any of those requirements, not being an agreement referred to in section 3 (2), has no effect.
The Act prohibits employers and employees from entering into working arrangements that provide for standards that are less than those set out under the Employment Standards Act and Regulations. Such agreements are in contravention of the Act.
If an employer and an employee agree to conditions of employment that are less than the minimum standards set out in the Act, they are deemed to be without effect.
An employee approaches their employer with a request to work additional hours at their regular rate of pay (not the overtime rates required by the Act). The employer agrees and schedules the employee to work the additional hours. This agreement contravenes the Act, and therefore is considered to have no effect. The employer is required by the Act to pay the overtime rates of pay.
This section of the Act also means that if an employee did not complain about an arrangement that was contrary to the Act during the period of employment, that failure to complain does not take away their entitlement to the provisions of the Act.
Theresa worked a Saturday shift in addition to working 8 hours daily Monday to Friday and is therefore entitled to weekly overtime under the Act. Theresa was paid the Saturday shift at regular rate and did not complain about it during employment. The employer argued that the decision to work overtime hours was made voluntarily by Theresa in an effort to increase earnings and that failure to complain during employment means Theresa could not complain later. The agreement, if there was one, is not valid because it contravenes the Act.
Where an employer and an employee have considered the minimum employment standards when resolving a dispute between them, and the resolution is expressed in a binding legal release, the director would not normally investigate a complaint subsequently filed by the employee. The director is of the view that matters between the parties were resolved to their mutual satisfaction at that time, and it does not fulfill a purpose of the Act to later reopen them.
Where there is evidence of coercion or duress, the director may set aside that release and investigate the complaint to determine if a contravention has occurred.
An employer requires Elaine to sign a release acknowledging that her final paycheque is full and complete payment of all wages. The employer states that he will not provide the paycheque to Elaine unless she first signs the release. Elaine signs the release before she leaves because she has financial obligations that she must meet. However, Elaine later discovers it does not contain statutory holiday and annual vacation pay she is owed and she files a complaint.
The director would investigate the complaint.
An employee offers to work on a two-week trial basis without wages. This offer contravenes the Act. The employer is required to pay wages earned for work performed.
Employment Standards Tribunal Decisions
Prints-Charming Framing (1009) Ltd.; (BC EST #D434/97)
Jas Rai Labour Supply Ltd.; (BC EST #D066/06)
Related sections of the Act or Regulation