Part 9, Section 72 - Application for Variance - Employment Standards Act Interpretation Guidelines Manual
This section explains how employers and employees may jointly apply for a variance and identifies the sections of the Act that a variance can address.
72. An employer and any of the employer's employees may, in accordance with the regulations, join in a written application to the director for a variance of any of the following:
(a) a time period specified in the definition of "temporary layoff";
(b) section 17 (1) (paydays);
(c) section 25 (special clothing);
(d) section 33 (split shifts);
(e) section 34 (minimum daily hours);
(f) section 35 (maximum hours of work);
(g) section 36 (hours free from work);
(h) section 40 (overtime wages for employees not working under an averaging agreement);
(h.1) a period specified in section 37 (1) (number of weeks covered by an agreement to average hours of work);
(i) section 64 (notice and termination pay requirements for group terminations).
The Director has sole discretion over whether to grant a variance of any of the specified provisions in this section. Before the Director can consider a variance the employer and any affected employees must join in a written application to the Director.
Section 73 explains the conditions that the Director will consider when deciding whether to approve a variance application.
Section 30 of the Employment Standards Regulation explains the process that employers and affected employees must follow when requesting a variance under s.72 of the Act.
Subsection (a) “temporary layoff”
Under the Act a “temporary layoff” means a layoff of up to 13 weeks in any period of 20 consecutive weeks. (See section 1(1) definition of “temporary layoff” for a discussion of the definition.)
Parties may wish to apply for a variance when employees will be laid off for a period exceeding 13 weeks, but the employer still has definite plans to recall the employees by a specific date.
An employer is closing down its operations for 16 weeks in order to make substantial renovations. The employer proposes to lay off its employees for that period of time. The employer intends to call all employees back to work when it reopens and to recognize their length of service as though they had continued to be employed throughout the layoff period.
The employees agree to be laid off and agree they will not claim compensation for length of service. However, they are concerned that after they return to work, their employer may claim they have started a new period of employment, because the Employment Standards Act provides that a temporary layoff becomes a termination when the layoff exceeds 13 weeks. In this case a joint application should be made under s.72 (a). The variance would ensure a continuation of employment for the 16-week layoff.
If the layoff continues for a period exceeding 16 weeks the employees will be entitled to claim compensation for length of service under s.63 of the Act.
Subsection (b) Section 17 (Paydays)
Section 17 (1) of the Act requires semi-monthly paydays within 8 days after the end of a pay period.
Employers must make every effort to pay their employees on time, even if it means changing their procedures to meet the requirements of the Act. Only in exceptional circumstances would the Director be satisfied that an employer cannot meet the payday requirements and grant a variance.
An employer is changing from paying their employees from semi-monthly to bi-weekly. This may result in an interruption in the pay period because of the change.
A variance would not be granted just because the requirements are inconvenient for the employer.
Subsection (c) Section 25. (Special Clothing)
Section 25 of the Act deals with the employer’s obligations when the employer requires the employee to wear special clothing, and allows for agreements regarding clothing upkeep.
Subsection (d) Section 33. (Split Shift)
Section 33 of the Act requires that a split shift must end within 12 hours of starting work.
Only in exceptional circumstances would a variance be granted extending the 12-hour maximum. Section 39 of the Act prohibits an employer from requiring an employee to work excessive hours or hours detrimental to an employee’s health or safety.
Subsection (e) Section 34. (Minimum daily hours)
Section 34 specifies that employees who are required to report to work must be paid for a minimum number of hours. Only in exceptional circumstances would a variance be granted for working hours, or pay, of less than 2 hours per day.
Subsection (f) Section 35 (Maximum hours of work)
Section 35 requires an employer to pay overtime wages for hours in excess of 8 hours a day or 40 hours a week. (See also s.40. Overtime wages for employees not working under an averaging agreement.)
Subsection (g) Section 36 (Hours free from work)
Section 36 requires an employer to ensure that an employee has at least 32 consecutive hours free from work each week, or to pay the employee 1-1/2 times for hours worked during the 32-hour period. The employer must also ensure that each employee has at least 8 consecutive hours free from work between each shift worked, except in the case of an emergency.
Subsection (h) Section 40 Overtime wages for employees not working under an averaging agreement)
Section 40 establishes overtime requirements for employees who are not covered by an averaging agreement. An employer and affected employees may choose to apply for a variance for a proposed work schedule where it is not beneficial to implement an averaging agreement. See s.37 of the Act, Agreements to average hours of work.
The ability to apply for a variance to section 40 gives employers and employees the flexibility to establish work schedules that do not strictly meet the requirements of the Act, but are not inconsistent with the intent of the Act.
Variances of overtime will not normally be granted for employees who work fewer than 30 hours when averaged over the proposed schedule, or temporary employees, as these employees do not generally benefit by a work schedule that extends the hours of work in a day for extra time off during the week.
If a variance is granted, it will include the following, as applicable:
- a schedule of working hours, showing the shift cycle and the actual hours and days to be worked in the shift schedule
- identification of the group of employees (by occupation, classification, etc.) or classes of employees covered by the schedule must be clearly stated (any specific employees who are not covered by the variance should be identified by name)
- mandatory statutory holiday entitlement subject to the requirement that employees have been employed at least 30 days
- requirement that any employee must work or earn wages for a full shift cycle (with the exception of termination of employment) or the overtime provisions of s.40 apply
- mandatory statement that overtime provisions of s.40 of the Act apply to weeks where there has been a contravention of the requirements of the variance
- mandatory statement that any work outside scheduled times of work must be paid in accordance with the overtime conditions in the variance.
- a minimum of 30 hours of work a week, or an average of 30 hours of work in a multiple week schedule
- overtime rates of 2 times for any hours worked in excess of 12 in a day; or 1-1/2x for an average of 40 hours worked in a week
- any work outside the shift schedule must be paid at overtime rates
A variance to the overtime requirements in s.40. may be granted for a limited period of time - a seasonal variance. A variance will not normally be granted for two 10-hour days a week.
Subsection (h.1) - a period specified in section 37(1) – number of weeks covered by an agreement to average hours of work
Under s.37(1) an agreement to average the employee’s hours of work over a period of 1, 2, 3, or 4 weeks is allowable. The number of weeks can be increased beyond 4 weeks only by a variance approved by the Director. The Director can vary no other provision of s.37 of the Act.
Subsection (i) Section 64 (notice and termination pay requirements for group terminations)
Under s.64 if the employment of 50 or more employees at a single location is to be terminated within any 2-month period, an employer must give written notice of group termination to all affected employees. The notice required ranges from 8 weeks to 16 weeks, depending on the number of employees affected. A variance under this section parallels the variance under “temporary layoff.”
An employer shuts down an operation for retooling, and lays off more than 50 employees for more than 13 weeks. The employer applies for a variance under s.72 (a) temporary layoff provisions. As long as a majority of the employees agree not to claim termination pay, this variance may be granted. Employees do not lose their accrued entitlements or their right to be recalled, because the employment has not been terminated. Because there are more than 50 employees involved, s.64 group termination provisions are also impacted.
The minister may also require the establishment of an adjustment committee under s.71. The adjustment committee suggests proposals that will eliminate the need to terminate the employees or at least minimize the impact of termination. These proposals may require a variance of the requirements of s.64. (See s.73 (2)).
A variance to the group termination requirements in section 64 may be granted in exceptional circumstances where 50 or more employees will be laid off for a period exceeding 13 weeks but the employer has definite plans to recall the employees by a specific date. In accordance with s.73(2) the variance would facilitate the preservation of the employer’s operations, an orderly reduction or closure of operations or short-term employment of employees for special projects.
The employer and employees may request a variance to a notice period that is already in effect should circumstances require it.
An employer with 75 employees gives the employees the required 8 weeks' notice of termination. As the 8-week notice period comes to an end, the employer realizes that an extra 2 weeks of work can be provided to the employees. In order to avoid the effect of s.67 (1) (b), the employer and employees can apply for a variance under s.72. Without a variance, the employer’s alternative is to terminate the employees as per the existing notice, or provide 8 weeks' notice again.
A majority of affected employees may apply to the director to cancel a variance. Section 86 gives the director the authority to cancel a determination. All variances are in the form of a determination.
Employees covered by a collective agreement
If an employee is covered by a collective agreement containing any provision relating to the subsections in s.72, the variance provisions under Part 9 of the Act do not apply.
Employment Standards Tribunal Decisions
Bayshore Healthcare Ltd. 2018 BCEST 63
ARC Programs Ltd., BC EST #D030/96
Passage Transition House, BC EST #D034/96
Prince George Family Services Society, BC EST #D300/96
James L. Armstrong, BC EST #D026/97
Related sections of the Act or Regulation
- s.1, Definition, “pay period”
- s.1, Definition, “temporary layoff”
- s.3, Scope of the Act
- s.4, Requirements of this Act cannot be waived
- s.17, Paydays
- s.25, Special Clothing
- s.33, Split Shifts
- s.34, Minimum daily hours
- s.35, Maximum hours of work
- s.36, Hours free from work
- s.37, Agreements to average hours of work
- s.40, Overtime wages for employees not working under an averaging agreement
- s.62, Definition “week of layoff”
- s.64, Group termination
- s.73, Power to grant variance