1993 Legislative Session: 2nd Session, 35th Parliament
THIRD READING


The following electronic version is for informational purposes only.
The printed version remains the official version.


Certified correct as passed Third Reading on the 21st day of July, 1993
Ian D. Izard, Law Clerk.


HONOURABLE MOE SIHOTA
MINISTER OF LABOUR AND CONSUMER
SERVICES AND MINISTER RESPONSIBLE
FOR CONSTITUTIONAL AFFAIRS

BILL 65 -- 1993

EMPLOYMENT STANDARDS
AMENDMENT ACT, 1993

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 Section 1 of the Employment Standards Act, S.B.C. 1980, c. 10, is amended by adding the following definitions:

"group termination" means a termination referred to in section 49.1;

"individual termination" means a termination of one or more employees that is not a group termination;

"Labour Relations Board" means the Labour Relations Board continued under the Labour Relations Code; .

2 Sections 1, 7 (2) (a) and 105 (2) (d) (ii) are amended by striking out "Industrial Relations Act" and substituting "Labour Relations Code".

3 Section 2 is repealed and the following substituted:

Standards

2 (1) Subject to subsection (2), a requirement under this Act or the regulations is a minimum requirement, and an agreement to waive that requirement is void.

(2) Where a collective agreement contains any provisions respecting a matter set out in Column 1 of the following table, the sections of the Part of this Act or the regulations set out opposite the matter in Column 2 do not apply in respect of employment covered by the collective agreement if the provisions of the collective agreement respecting the matter, when considered together, meet or exceed the minimum requirements established by the sections of the applicable Part or regulations, when considered together:

Column 1

Column 2

Hours of work and overtime

Part 3

Annual vacation and vacation pay

Part 4

Termination of employment or layoff

Part 5

General holidays

regulations made under section 105 (2) (c) (i), (ii), (iv) and (v).

(3) Where the provisions of a collective agreement respecting a matter referred to in Column 1 of subsection (2) do not, when considered together, meet or exceed the minimum requirements established by the sections of the applicable Part or regulations referred to in Column 2 of subsection (2), when considered together,

(a) the sections of the applicable Part or regulations are deemed to be incorporated in the collective agreement and to replace the provisions of the collective agreement respecting the matter, and

(b) the dispute resolution provisions of the collective agreement apply for the resolution of a dispute arising in respect of the application or interpretation of the sections incorporated in the collective agreement under paragraph (a) of this subsection.

(4) Each of the parties to a collective agreement shall, at the time that the collective agreement is filed with the minister under section 51 of the Labour Relations Code, notify the director if a provision in the collective agreement provides a lesser benefit to the employees covered by the collective agreement than the benefit provided by a section in a Part or regulation referred to in Column 2 of subsection (2).

4 Section 15 (1.1) is amended by striking out "the Industrial Relations Council pursuant to section 30 of the Industrial Relations Act" and substituting "the Industrial Relations Council under section 30 of the Industrial Relations Act or the Labour Relations Board under section 135 of the Labour Relations Code".

5 Section 30 (3) is repealed.

6 Section 31 is amended by adding the following subsection:

(3) Overtime wage provisions of a collective agreement that vary from the overtime wage provisions of section 30 do not require authorization under subsection (1) of this section where the work schedules provided for in the collective agreement

(a) consist of a sequence of days at work and days off work

(i) that forms a pattern that repeats over a period of not more than 8 consecutive weeks, and

(ii) under which the employees covered by the work schedule are to work an average of not more than 40 and not less than 35 hours per week at the employees' regular wage, and

(b) apply over a period of at least 26 weeks.

7 Section 42 is amended

(a) in subsection (3) by adding ", whether or not the employee has obtained other employment or has otherwise realized or recovered any amount of money in respect of the period of notice" after "notice required", and

(b) in subsection (6) by striking out "a contract of employment may" and substituting "a contract of employment or a collective agreement shall".

8 Section 44 is amended by striking out "lays off an employee" and substituting "lays off an employee not covered by a collective agreement".

9 The following section is added:

Layoff under collective agreement

44.1 (1) In this section "recall period" means a period specified in a collective agreement as the period within which an employee who is covered by the collective agreement and who is laid off may be recalled to employment.

(2) An employee who is covered by a collective agreement and who is laid off may choose

(a) to be paid the severance pay the employee is entitled to receive under the collective agreement on an individual termination, or

(b) to maintain the employee's right of recall under the collective agreement.

(3) Where an employee chooses to be paid severance pay under subsection (2) (a), the employer shall forthwith pay to the employee the severance pay referred to in subsection (2) (a).

(4) Where an employee chooses to maintain the right of recall under subsection (2) (b), the employer shall forthwith pay to the director, in trust, the severance pay referred to in subsection (2) (a).

(5) Where an employee referred to in subsection (2) has not within 13 weeks of layoff chosen to be paid severance pay or to maintain the right of recall, the employer shall forthwith after the expiry of that 13 week period pay to the director, in trust, the severance pay referred to in subsection (2) (a).

(6) The director shall pay the severance pay received under subsection (4) or (5)

(a) to the employer if the employee accepts employment made available under the right of recall, or

(b) to the employee if the employee renounces the right of recall or if the recall period expires.

(7) An employee is deemed,

(a) on accepting payment of severance pay under subsection (3) or (6) (b), to have abandoned the right of recall, or

(b) on accepting employment under the right of recall, to have abandoned the right to severance pay.

10 The following sections are added to Part 5.1:

Notice required in respect of group terminations

49.5 (1) An employer shall not terminate the employment of an employee referred to in section 49.1 (1) (b) without giving the employee

(a) if the employee is covered by a collective agreement,

(i) the notice required by section 49.1 in addition to the notice that would have been required by the collective agreement had the termination been an individual termination, or

(ii) the notice required by the collective agreement, whichever is greater, or

(b) if the employee is not covered by a collective agreement, the notice required by section 42 in addition to the notice required by section 49.1.

(2) The period of notice required by section 49.1 shall,

(a) for the purpose of calculating the period of notice required under subsection (1) (a) (i), be added to and shall not coincide with the period of notice that would have been required by the collective agreement had the termination been an individual termination, or

(b) for the purpose of calculating the period of notice required under subsection (1) (b), be added to and shall not coincide with the period of notice required by section 42.

(3) When an employer terminates the employment of an employee and fails to comply with subsections (1) and (2), the employer shall pay the employee severance pay equal to the period of notice required under subsection (1), whether or not the employee has obtained other employment or has otherwise realized or recovered any amount of money in respect of the period of notice.

(4) Payment under subsection (3) does not relieve the employer from making any other payment to which the employee is entitled under this Act.

Continuation of employment after expiry of notice

49.6 Where an employee referred to in section 49.1 (1) (b) continues to be employed after the expiry of the period of notice given under section 49.5, the notice is without effect.

Continuation of employment after completion of definite term of work

49.7 Where an employee referred to in section 49.2 (c) continues to be employed for a period of 3 months or more after completion of the definite term or specific work for which the employee was employed, the employment shall be deemed not to be for a definite term or specific work and, for the purpose of sections 42, 49.1 and 49.5, the employee's period of employment shall be deemed to have commenced at the beginning of the definite term or specific work.

Group layoff under collective agreement

49.8 (1) Where 50 or more employees covered by a collective agreement are laid off at a single location within any 2 month period, section 44.1 applies to each of the employees who has been laid off.

(2) For the purpose of applying section 44.1, the reference to the severance pay described in section 44.1 (2) (a) shall be read as a reference to the severance pay the employee is entitled to receive under section 49.5.

No right of recall if severance pay accepted

49.9 An employee whose employment is terminated and who accepts the severance pay to which the employee is entitled is deemed to have abandoned any right of recall held by that employee in respect of that employment.

11 Section 103 (1) (a) is amended by striking out "44, 45," and substituting "44, 44.1, 45, 49.1, 49.5,".

Transitional

12 (1) A reference to a collective agreement in a section of this Act includes a collective agreement entered into before the coming into force of that section.

(2) Parts 5 and 5.1 of the Employment Standards Act as they read before the coming into force of sections 7 to 11 of this Act apply in respect of an employee who was laid off, whose employment was terminated or to whom notice of layoff or termination was given before the coming into force of those sections.

Transitional

13 Section 2 of the Employment Standards Act as re-enacted by section 3 of this Act applies in respect of employment covered by a collective agreement from and including the later of

(a) January 1, 1994, and

(b) the date, not later than April 1, 1994, set out in an order made by the director or the director's representative on an application jointly made by the parties to the collective agreement.

Commencement

14 (1) Sections 1, 2 and 4 come into force by regulation of the Lieutenant Governor in Council.

(2) Sections 7 to 12 are deemed to have come into force on the date that this Act receives First Reading in the Legislative Assembly and are retroactive to the extent necessary to give them effect on and after that date.

(3) Sections 3, 5, 6 and 13 come into force on January 1, 1994.


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