Canadian HR Reporter

CANADIAN HR REPORTER JULY 2019 36 FEATURES employment standards over the past four years, and it looked at other jurisdictions alongside representatives from organized labour, said Guignard. "ey were trying to figure out a way to make these changes in a way that was fair to both employees and employers, and provide flexibility in the workplace — not create any unnecessary costs or new burdens, but also protecting and keeping certainty to employees… and they came up with 71 consensus recom- mendations on that." But so far, the changes benefit employees, he said. "ere's nothing in here that favours employers, and it doesn't include any of this industry con- sensus report's recommendations that would assist employers with some of the challenges that they are facing." is should not be an adver- sarial system, said Guignard. "is is Canada in the 21st cen- tury. It's not like we have a repu- tation for exploiting miners in chemical factories or something like that. Which, if you read this, that's what you would assume is going on." Job-protected leaves e amendments add critical ill- ness or injury leave, where an em- ployee can take 36 weeks to care for a child and up to 16 weeks to care for an adult family member. A medical certificate is required. There's also a leave respect- ing domestic or sexual violence, with employees entitled to up to 10 days of unpaid leave, in units of one or more days or in one continuous period, and up to 15 weeks of unpaid leave. ose leaves are consistent with what we're seeing in other juris- dictions, said Clarke. "In practice, a lot of employers don't get too upset or concerned about the addition of protected unpaid leave. Because, yes, it can be a bit disruptive in the workplace, because they'll lose their employee during that period of time. But... there's no additional cost." There's also alignment here with federal statutes and regula- tions, said Richard Truscott, Cal- gary-based vice-president for B.C. and Alberta at the Canadian Fed- eration of Independent Business. "On the ground, small busi- nesses do these kinds of things every day in an informal, unof- ficial way. And putting this into regulations is fine." Youth employment With some exceptions, youth un- der the age of 14 (instead of 12) will be prohibited from working, and children under 16 will be prohibited from working in "haz- ardous industries" or performing "hazardous work," which will be further defined by regulation. at change makes sense, said Truscott. "We don't want to prevent a 14- or 15-year-old kid from mowing lawns. But, at the same time, I think everybody has an interest in making sure that child labour is not an issue in British Columbia or in our country," he said. "We want to make sure that the employment rules stay flex- ible, to support small businesses, hiring young people and inexpe- rienced workers. We don't want, for instance, to raise the minimum wage too far, too fast, or change the employment rules to become a lot more restrictive. at will stop small businesses from do- ing the hiring for those first-time jobs." Better protection for children and youth makes sense — and many employers aren't looking to hire a 12 year old. But the lack of clarity around what work can be done and required permissions is a challenge, said Guignard. "e terms for light work have not been sufficiently defined," he said. "If you're a youth apprentice in a certain kind of work, you've been protected for not doing roofing, or something more dan- gerous, but if you're apprenticing in jobs at age 14 or 15 years old, you could be caught up in this and find yourself in contravention of the employment standards, when you're just doing the exact same thing teenagers have done for the last 40 years." Labour relations On the labour relations front, any provision in a collective agree- ment that deals with issues such as overtime, hours of work, statu- tory holidays or entitlements upon termination of employment must meet or exceed the entitle- ments set out in the ESA. If not, the ESA entitlements will be deemed to be incorporated into the collective agreement. "(Before), as long as you had something in the collective agree- ment, then you kind of checked the box. But now, they want to make sure that whatever you have in the collective agreement meets or exceeds the employment stan- dard. And if it doesn't, then the employment standards will apply," said Clarke. Keeping the secret ballot vote is much appreciated, said Guignard. "at was something potential- ly terrifying… it's not productive in those workplaces." However, the government also shortened the timeline for certifi- cation to five days, he said, "which is tough if there's a corresponding curtailment on an employer's rights to free speech." But the timeline for decertifi- cation is also now five days, "so they're at least fair on either side of that," said Guignard. As for matching the standards, some employers need the flexibil- ity, he said. For example, if an employee and employer work out an arrange- ment around shifts that doesn't technically meet the standard, and nobody's feeling wronged in that environment, "now we have to meet potentially more stringent standards," said Guignard. However, most collective agree- ments would probably already meet or exceed the employment standards, he said. Complaints process e new rules eliminate the self- help kit as a required step before filing a complaint. Previously, em- ployees were required (in most cases) to present the kit to their employers to attempt to resolve their disputes prior to being able to proceed with their complaint. Instead, the director of the Employment Standards Branch must accept and investigate all complaints. While the self-help kit process had good intentions, it was under- utilized, said Clarke. "In many cases, the employers were getting the self-help kit from their employees, or typically for- mer employees, and just ignoring them or nothing was happening — but you had to go through this process as a precondition to mov- ing forward with a complaint," he said. "Now, you're making a direct complaint. And so the director will screen complaints, so there'll be an intake process. And once they accept the complaint, then the director will investigate." It should make it easier for em- ployees to have their cases heard, said Truscott. "It will, at the same time, make it more easy for frivolous cases to proceed. And so there is that… downside to this issue. But we want to make sure people do have a way… if employees do feel that they've been mistreated, or they have a grievance about some- thing, that there is an avenue to resolve that. And hopefully, what normally will happen is that it's resolved inside the business, that the employee and the employer sit down and figure it out, like adults." But there's more authority now given to the director to determine whether a case deserves to be heard or not, he said. "It's not going to affect a lot of employers — the ones that are offside will be impacted," said Truscott. "It also shows how important it is to make sure that policies are in place and written down and mu- tually understood by both the em- ployer and the employee to make sure that everybody's on the same page, right from the get-go. And if there's any misunderstandings, they can refer back to the original discussions," he said. Looking ahead While there has not been a lot of negative feedback about these latest changes, there's a second batch set to be introduced in the fall that will likely deal with con- tentious issues such as paid leave, said Truscott. "It's really important for the government to remember that what employers and employees really need is a flexible system," he said. "And so I know the gov- ernment's impulse is to prescribe everything in regulation. But, the modern workplace does need flexibility for both employers and employees. And we want to make sure we don't make the system so full of rules and regulations that it becomes overly difficult for em- ployers to hire… and for workers to find jobs." ere's a clear ratcheting up of cost to doing business in the prov- ince, said Guignard. "Add all these things together and then make more expensive changes to the Employments Standards Act, and it is going to become more and more difficult to do business in British Colum- bia," he said. Youths under age 14 prohibited from most work B.C. STANDARDS < pg. 1 e recommendations in the summary report must also be im- plemented, so that puts the pres- sure on employers to take active steps, said Vijaykumar. Training requirements Employer training around harass- ment and violence would have to be delivered at least every three years, according to the govern- ment, and provide instruction on the prevention policy, including crisis prevention, personal safety and de-escalation techniques. e training is going to be spe- cific to the culture and nature of the workplace, said Vijaykumar. "ere is some flexibility worked in to account for the particular needs of that particular workplace and what might work for the em- ployer and employees there." ese requirements are more detailed than what is required now, which is more a general training obligation without spe- cifics, said Todd. "Now… you have to train on the policy, you have to train on the relationship between harass- ment and violence and grounds of discrimination. And then you have to talk about crisis preven- tion, de-escalation techniques, and how to respond differently in different scenarios." While more is required, said Foster, "it would be indicative of best practices in the industry." But overall, considering the proposed changes, it would be wise for employers to look at their existing violence harassment poli- cies, he said, "and see if they ad- dress the substantive provisions." And since the government has already consulted with a signifi- cant number of stakeholders and industry representatives, said Vijaykumar, it's "quite likely that (the regulations will) be passed in a form if not identical, at least very similar, to this." Unless there's any major push- back, this is likely to be what the regime looks like going forward, said Todd. "And a lot of it isn't going to be controversial. These are things that employers are familiar with: develop a policy, do an assess- ment, create some procedures, provide training," he said. "ose things aren't going to require much work for most employers — they probably will have that already." Training requirements 'more detailed' than before HARASSMENT < pg. 2 Credit: EB Adventure Photography (Shutterstock) The new employment standards in British Columbia include elimination of the self-help kit for complaints.

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