Interpretation Guidelines Manual British Columbia Employment Standards Act and Regulations
EMPLOYMENT STANDARDS REGULATION - PART 7 - VARIANCES AND EXCLUSIONS
ESR Section 34 – Exclusions from hours of work and overtime requirements
This section identifies employees and occupations excluded from Part 4 of the Act, Hours of work and overtime.
34. Part 4 of the Act does not apply to any of the following:
(a) a fishing or hunting guide;
(a.1) a wilderness guide;
(b) a person, other than a percussion drill or diamond drill operator or a helper of either operator, employed in any of the following activities while exploring for minerals other than oil or gas:
(ii) line cutting;
(iii) geological mapping;
(iv) geochemical sampling and testing;
(v) geophysical surveying or manual stripping;
(c) a teacher;
(d) a person employed as a noon hour supervisor, teacher's aide or supervision aide by
(i) a board as defined in the School Act, or
(ii) an authority as defined in the Independent School Act;
(e) a person employed part time by an institution that
(i) provides training or instruction in a trade, occupation, vocation, recreational activity or hobby, and
(ii) is owned or operated by a municipality, regional district or the government;
(f) a manager;
(g) a tender vessel worker;
(h) a guard, fire warden or fish camp worker employed in connection with a commercial fishing operation;
(i) a person employed on a towboat other than
(i) a boom boat,
(ii) a dozer boat, or
(iii) a camp tender
in connection with a commercial logging operation;
(j) a police officer employed by a municipal police board established under the Police Act;
(k) a fire fighter employed by a paid fire department as defined in the Fire Department Act;
(l) a commercial traveller who, while travelling, buys or sells goods that
(i) are selected from samples, catalogues, price lists or other forms of advertising material, and
(ii) are to be delivered from a factory or warehouse;
(m) an operator of a motor vehicle who is employed exclusively to transport
(i) students, teachers and other persons accompanying them on school related activities that have been approved by a board as defined in the School Act or by an authority as defined in the Independent School Act, and
(ii) persons to and from a church;
(n) the master or crew of a chartered boat;
(o) any of the following employees of B C Rail Ltd. or of a subsidiary of that company as defined in the British Columbia Railway Act:
(i) a locomotive engineer or helper;
(ii) a train conductor or a train baggageman;
(iii) a brakeman;
(iv) Repealed. [B.C. Reg. 357/97.]
(p) Repealed. [B.C. Reg. 113/99, s. 5.]
(q) a live-in home support worker;
(r) any of the following who are employed by a charity to assist in a program of therapy, treatment or rehabilitation of physically, mentally or otherwise disabled persons:
(i) a counsellor;
(ii) an instructor;
(iii) a therapist;
(iv) a childcare worker;
(v) Repealed. [B.C. Reg. 44/97, s. (c).]
(s) a faculty member as defined in the University Act or the University of Northern British Columbia Act;
(t) a professor as defined in the Royal Roads University Act;
(u) an instructor, counsellor, librarian or administrator who is employed by an institution as defined in the College and Institute Act or by the British Columbia Institute of Technology;
(v) a senior tutor, or tutor, who is employed by the Open Learning Agency;
(w) a night attendant;
(x) a residential care worker;
(y) a live-in camp leader;
(z) a teaching staff member as defined in the Technical University of British Columbia Act.
Section 3 of the Employment Standards Act establishes that the Act applies to all employees other than those excluded by regulation. Under this Regulation, there are certain types of employees who are excluded from the Act in its entirety and in other cases, certain employees, depending on the work they are performing, are excluded from certain provisions of the Act.
As long as a person is performing work as described in this section, or as governed by the Acts referred to in this section, they are not covered by the provisions of Part 4 of the Act.
The burden is on the employer to show that the employee is not entitled to the Act because of an exclusion under this Regulation.
Although employees under this section are excluded from the hours of work and overtime provisions of the Act under Part 4, they are entitled to be paid for all time worked, according to their terms of employment. Extra work means extra pay, but not at overtime rates.
Where there is evidence to support findings that the employer and the employee agreed that a specific number of hours of work would be compensated by a specific amount of wages, the employee would be entitled to extra wages for the extra work, based on their regular rate of pay.
An employee named in this section, who is excluded from the overtime provisions of the Act, accepts an offer to work 50 hours a week for $50,000 a year. An employee works 55 hours in one week. The employee is entitled to additional compensation for 5 hours in excess of 50 hours a week, based on their regular wage. The lack of entitlement to overtime does not mean that the employer can require an employee to work extra hours without extra pay.
Specific information regarding the occupations listed in this section follows:
Section 34(a) Eco-tourism
- This subsection does not apply to those employees engaged in eco-tourism.
Sections 34(d) or Section 34 (m)(i),
- A "private” college licenced under the Private Post Secondary Education Act is not a school or independent school for purposes of this section. Therefore, employees as described in ss.34(1)(d) or 34(m)(i) who are working for a private college, are not excluded from Part 4 of the Act.
- Section 34(d) does not apply to a school crossing guard employed by a School District, who only ensures safe passage across a public road to pupils on their way to and from school in the morning and the afternoon.
- Under s.34(1)(e) the word "institution" means a facility such as a public outdoor swimming pool, a community centre, a recreational complex and such like public buildings.
- "Operated by a municipality" includes an agency of, a branch of, or a division of the municipal authority such as the Parks and Recreation Commission. This regulation would also apply if a School District or contractors “operated” an “institution” “owned” by a municipality, regional district or the government.
All part time employees of this type of institution are excluded, not just those part time employees who provide training or instruction in recreational activities or hobbies.
Section 34(f) “Manager” (Refer to Section 1 in the Regulation)
- The tow boat must be working in connection with a commercial logging operation. A self-propelled barge is not a tow boat.
- A "commercial traveler is not defined in the Act or the Regulation.
- Factors to be considered in identifying a “commercial traveler” are as follows:
- the degree of control the employee has over their own hours of work and work schedule
- the transient nature of the location of employment; and
- a corresponding physical isolation from the location of the employer
- The director considers a commercial traveler to be an employee who travels to clients to sell or buy goods to be delivered later. This does not include an out-of-showroom sales person, even those paid on a commission basis.
- A commercial traveler is a wholesaler, while an out-of-showroom salesperson is a retailer.
- A commercial traveler is an employee who has a "territory" and who calls upon stores that retail the lines of products that they represent, with the objective of obtaining an order.
A commercial traveler represents a manufacturer of souvenir dolls, and visits gift and tourist stores on Vancouver Island with the view of getting orders to supply dolls.
- Under this subsection, a church means any religious assembly building, including a synagogue, temple and mosque.
- A “chartered boat” is not defined in the Act or Regulations. The director takes the position that a chartered boat is one that is “hired” for a specific task or trip. The boat normally has a master and a crew who control the operation of the boat but not the end destination or the goods being delivered.
- A “group charter” of a vessel for a party where the client determines the destination and duration of the trip is a chartered boat for the purposes of this section and the master and crew are not entitled to the provisions of this section.
- A water taxi, that has a contract to drop off and pick up guests at an island camp, is not a chartered boat for the purposes of this section.
- Any boating business that sells tickets and has a set schedule, such as whale watching excursions, is not a charted boat for the purposes of this section.
Section 34(q) - “Live-in home support worker” (Refer to Section 1 in the Regulation)
Program of Therapy
- Under this subsection, a program of therapy, treatment or rehabilitation means a program designed or approved with the sole purpose of assisting a client who is physically, mentally, or otherwise disabled and is run by a non-profit organization.
- "Otherwise disabled" is undefined. The Director notes there is a difference between a disability and an injury or illness, and will take into consideration the views of WCB and the medical community on this issue.
Section 34(w) – “Night attendant” (Refer to Section 1 in the Regulation)
Section 34(x) – “Residential care worker” (Refer to Section 1 in the Regulation)
Section 34(y) - “Live-in camp leader” (Refer to Section 1 in the Regulation)
Employment Standards Tribunal Decisions
F.S.I. Culvert Inc,. BC EST D#301/97
“otherwise disabled” Annabel Webb, BC EST#D274/00
Related sections of the Act or Regulation
Fire Department Act
Independent School Act
Private Post Secondary Education Act
British Columbia Railway Act
University of Northern British Columbia Act
College and Institute Act
Technical University of British Columbia Act