Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS ACT - PART 10 - COMPLAINTS, INVESTIGATIONS AND DETERMINATIONS
ESA Section 85 – Entry and inspection powers
This section outlines the director’s powers to ensure compliance with the Employment Standards Act.
85. (1) For the purposes of ensuring compliance with this Act and the regulations, the director may do one or more of the following:
(a) enter during regular working hours any place, including any means of conveyance or transport, where
(i) work is or has been done or started by employees,
(ii) an employer carries on business or stores assets relating to that business,
(iii) a record required for the purposes of this Act is kept, or
(iv) anything to which this Act applies is taking place or has taken place;
(b) inspect, and question a person about, any work, material, appliance, machinery, equipment or other thing in the place;
(c) inspect any records that may be relevant to an investigation under this Part;
(d) on giving a receipt for a record examined under paragraph (c), remove the record to make copies or extracts;
(e) require a person to disclose, either orally or in writing, a matter required under this Act and require that the disclosure be under oath or affirmation;
(f) require a person to produce, or to deliver to a place specified by the director, any records for inspection under paragraph (c).
(2) Despite subsection (1), the director may enter a place occupied as a private residence only with the consent of the occupant or under the authority of a warrant issued under section 120.
The director has extensive powers to investigate complaints.
The director has the authority to question any person who may have information relating to a complaint, including, but not limited to, the employer and its employees, consultants, accountants, bookkeepers, contractors, clients, or suppliers of goods or services.
To ensure compliance with the Act, the director has the authority to :
- Inspect Records
Employers must ensure that proper payroll records are available for inspection by the director. An employer must cooperate with the director during an investigation. (Refer to Act s.28. Payroll records and ss.6 and 18 of the Employment Standards Regulation).
The ability to inspect records includes entering the offices of bookkeepers and accountants, and inspecting any documents they may be keeping for the employer.
The director has the authority to also inspect accounts payable records of a customer or client of the employer, or any other documents relevant to the complaint, or to the enforcement of a determination.
Under s.85(1)(c), the director may require the production and delivery of “any record”. This distinction is of importance, particularly in cases when a “Demand for Records” is issued requiring the production of records where there is a dispute whether the complainant is an “employee” vs. “independent contractor” for purposes of the Act.
- Remove Documents
The director has the authority to take documents or require them to be delivered at a particular place and time. A receipt will be issued for such documents.
- Require a statutory declaration
The director may require that information be provided in the form of a statutory declaration (an affidavit sworn in front of a commissioner of oaths).
The director can only enter a private residence with the permission of the occupant, or with a warrant. The need to access a residence may occur when an employer operates out of their private residence, or when business records are kept at a private residence. This situation may also arise in the case of a domestic employee. (Refer to Part 14, Section 120 of the Act, Warrant to carry out inspection powers).
Employment Standards Tribunal Decisions
HOC Hyperbaric Care Centre Inc., BC EST #D550/99
Maan Farms Ltd., BC EST #D038/10
Related sections of the Act or Regulation
- s.1, Definition, “employee”
- s.3, Scope of the Act
- s.28, Payroll records
- s.117, Director’s power to delegate
- s.120, Warrant to carry out inspection powers
- s.122, Service of determinations and demands