A summary report from the BC Employment Standards Coalition reveals why the B.C. Employment Standards Act needs a lot of repairs and stronger enforcement.
The report, “Workers’ Stories of Exploitation & Abuse: Why BC Employment Standards Need to Change”, tells the horror stories of workers who have not been protected by the Act, outlines its shortcomings and makes recommendations for improvements.
Here are some excerpts:
For many service workers, the employer expects workers to be available for 5 days a week but will only schedule them for 2 or 3 days. There is no ESA requirement to provide work schedules. Prior to changes to the ESA in 2002 employers were required to display hours-of-work notices in each workplace where they can be read by all employees. The ESA also required a 24-hour notice of a change in shift unless as a result of the change the employee was paid overtime wages or a shift extended before it ended.
▪ There be no overtime, hours of work exclusions or special rules. All workers should be covered by the same minimum standards.
▪ The overtime averaging provisions of the ESA should be repealed.
▪ All overtime work should be voluntary, except in emergency situations, as in the Manitoba legislation: “An employer's management rights do not include an implied right to require an employee to work overtime.”
▪ Employers should be required to offer available hours of work to those working less than full time before new workers performing similar work are hired.
▪ Employers should be required to post work schedules two weeks in advance, such schedules to include when work begins, ends, shifts, and meal breaks).
The Employment Standards Act is legislation designed to provide basic minimum terms and conditions of work that are applicable to all employers and employees. Variances, exceptions and exclusions are inconsistent with this principle of universality. However, the BC Employment Standards Act and Regulation are replete with a myriad of exceptions, exclusions and special rules that permit some employers to avoid paying minimum wage, vacation pay, public holiday pay, overtime pay, and severance pay.
The bottom line should be that employers cannot avoid their statutory obligations by misclassifying workers as independent contractors when they are actually employees. …
In order to ensure that employees are not misclassified, the BC government needs to:
▪ Strengthen enforcement of the Employment Standards Act;
▪ Restore the enforcement capacity of the Employment Standards Branch;
▪ Eliminate the “self-help” kit and dispute resolution process; and
▪ Ensure that workers who believe their workplace rights have been violated have the ability to complain directly to the Employment Standards Branch.
We received a total of 89 stories that involved some form of wage theft – the most common type of complaint.
Enforcement of the Act through adequate active investigation of workplaces and an accessible, worker-friendly complaint process by the Branch would address the majority of these complaints.
The current BC Employment Standards Act does not contain a provision that addresses bullying and harassment. This needs to change.
According to First Call, both the research data and the stories of young workers they collected make it abundantly clear that the deregulation of child labour in BC has resulted in hundreds of workplace injuries, some disabling for life, numerous instances of unchecked exploitation by unscrupulous employers, as well as negative impacts on many young people’s education due to over work.
Already low paid, precariously employed and highly exploited, farm workers have suffered further over the past decade and a half, as the BC government bowed to the greed and political pressure of a powerful agricultural employers’ lobby, and stripped from farm workers the entitlement to such basic rights and benefits as overtime pay, statutory holidays with pay, annual vacations with pay, and hours of work restrictions.
Therefore what is missing from the Act is a section dealing specifically with an employee’s exclusive right to retain all tips or gratuities received for services rendered during the course of employment.
Since 2000/2001 the number of Branch offices has been reduced from 17 to 9 (a 47 per cent reduction), and the total number of Branch staff has been reduced from148 to 74 (a 50 per cent reduction). At the same time total employment in BC has increased by 23 per cent, and the number of establishments with employees has increase by 25 per cent.
According to stories received from workers and workers advocates, workers who have submitted ESA complaints and been through the process of mediation and adjudication have found the experience difficult, intimidating, unfair, and often disrespectful or even abusive such that they are extremely reluctant to ever go through the process again.
▪ Eliminate the “self-help” kit and dispute resolution process, and ensure that workers who believe their workplace rights have been violated have the ability to complain directly to the Employment Standards Branch.