Short window to respond to BC Employment Standards review!

British Columbia has a history of sometimes turbulent labour relations. However, we’re a long ways away from the use of British army troops to supress a coal miner’s strike on Vancouver Island just before WW1 or the 1918 shooting of Ginger Goodwin, a vice-president of the BC Federation of Labour. Now, the struggle is over the relative balance between employee and employer interests in the province’s employment standards.

These standards have been more or less stable since the last major set of changes in 2002, early in the Gordon Campbell government. Now that the NDP, under John Horgan, are back in office, the government is taking another look at these standards, sparked in part by the publication of a multi-year study by the BC Law Institute, an independent law reform agency. The final report of this study, partly funded by the BC government, was released in December 2018. This report, a 440-page PDF, contains 71 recommendations. The province is looking for comments on this report and recommendations, which may be emailed to ESAReview@gov.bc.ca by March 31.

Payroll professionals work with these employment standards every day. Our role is to guide employers in what’s necessary for compliance with these legal minimums, as well as to explain these to the employees affected. If these standards aren’t easy for people to understand, our work becomes more difficult. While the BCLI report does partly address this question of understanding, in my view it doesn’t put enough emphasis on this. The treatment of statutory holidays is a good example.

In BC, one of the entitlement rules for statutory holiday pay is that employees have at least 30 days employment with their employer. While that seems clear, there are a number of possible situations where the language used leads to uncertainty:

Louisa works on a seasonal basis for her employer. She works from early August till early December each year.

Mark worked 5 years for XYZ Inc. He quit in 2013 and was re-hired by this employer in early August of 2018.

Would the BC employment standards require that Louisa and Mark receive statutory holiday pay for Labour Day in these situations, assuming they met the other requirements? I’m not sure that’s what most employers would understand, but there’s nothing in the BC legislation that says the 30 days have to be in the same period of employment as the statutory holiday itself.

The BC employment standards say an employee must be paid an “average day’s pay” as statutory holiday, where the entitlement requirements are met. This average is based on what’s paid or payable for work done, wages earned and any vacation pay for any vacation time that falls within the 30 days prior.

Many employers pay employees, especially hourly paid employees, vacation pay every pay period. Since vacation pay is “wages”, what should be included in the daily average for vacation pay in this situation – the vacation pay owing on the work done in the 30 prior days or the vacation pay provided on the pay days that fall within this 30 day period?

The BC employment standards say an employee must either be given a day off with pay or another day in lieu, for each statutory holiday. What happens if an employee qualifies for a statutory holiday, but after this qualification, it’s not possible to give the person a day off.

Chloe qualified for the Good Friday holiday. She has been employed with the employer for a number of years and worked a regular Monday to Friday schedule. However, just before the holiday, her father became seriously ill and Chloe took a 27-week compassionate care leave.

Is Chloe entitled to be paid statutory holiday pay for the Good Friday holiday? What if she does not agree to substituting another day for the Good Friday itself? What happens if Chloe never returns to work with her employer?

The BC employment standards don’t clearly define what happens when a person qualifies for a statutory holiday, but the employment ends before the related statutory holiday occurs.

James met the requirement for 30 days of employment. He worked 22 days in the 30 days prior to Victoria Day. However, between working the minimum 15 days required and the actual Victoria Day statutory holiday, James was terminated by his employer.

Hilary agreed to substitute another day for the February Family Day statutory holiday. Hilary and her employer agreed that she would add an extra day in lieu to her annual vacation, then scheduled for late August. However, in June, due to a sudden downturn in business, Hilary was terminated by her employer.

The BC employment standards don’t clearly lay out what happens in these situations. Some jurisdictions, such as the Federal Canada Labour Code, limit employee rights to statutory holidays that fall within a period of employment. There is no similar provision in the BC legislation.

These are just a small sample of the areas where the language of the BC employment standards needs both significant tightening and greater clarity. Addressing these is perhaps just as important as reviewing the balance between employer and employee interests.

Alan McEwen is a Vancouver Island-based HRIS/Payroll consultant and freelance writer with over 25 years’ experience in all aspects of payroll. He can be reached at armcewen@shaw.ca or (250) 228-5280. If you like these articles, please sign up to my email list to be notified of future postings.

About Alan R. McEwen

HRIS/Payroll consultant and freelance writer
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