Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 1 - INTRODUCTORY PROVISIONS
ESA Section 1 – Definitions – Work
This section contains definitions for terms used throughout the Employment Standards Act and its Regulation.
"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.
- 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.
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 he or she is 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.
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 traveling 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 traveling 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 traveling 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.
Bob, who resides in Burnaby, is employed to work on construction sites from Vancouver to Hope. He is not entitled to travel time from residence to the construction site(s) and return. If he was required to report to a construction site in Whistler, the travel time from residence to the site and return would be considered work. Also, time spent traveling between construction sites is considered work.
A driving instructor drives from her 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 her residence after instructing the last driver of the day or from the business office is not considered work.
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.
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 traveling to the first job site, or returning home from the last. You would be entitled to wages for the time spent traveling from one job site to another during the day.
I am the lead hand, and am expected to make sure there is a complete crew before leaving the marshaling 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 to the travel time.
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.
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 his or her 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.
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.
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.
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)
Related sections of the Act or Regulation