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Changes to Employment Standards in effect Nov. 30

Penalties, changes to overtime and scheduling part of revisions to Act Greater flexibility for scheduling and overtime, fewer regulations, and mandatory penalties are just a few of the changes to the Employment Standards Act and Regulation that come

Penalties, changes to overtime and scheduling part of revisions to Act

Greater flexibility for scheduling and overtime, fewer regulations, and mandatory penalties are just a few of the changes to the Employment Standards Act and Regulation that come into effect on Nov. 30.

"These changes modernize and simplify B.C.’s rules, making them more consistent with other jurisdictions," said Skills Development and Labour Minister Graham Bruce.

"Employees and employers want to negotiate improved workplace arrangements, and our legislation allows them to do that, which will create jobs and revitalize the economy."

One of the most progressive changes to the Act is the recognition that different jobs require different schedules – eight hour days, five days a week is not always practical for employers and employees.

Under the new act, companies and their employees can agree to work schedules that average out hours over periods of up to four weeks, providing they don’t work more than 12 hours in a day or more than an average of 40 hours a week.

For example, an employee can work extra hours in exchange for paid time off during the same week without having to be paid overtime for hours worked on the long day.

Overtime is payable after eight hours a day if the hours have been added to an employee’s schedule, or if an employee works more than an average of 40 hours a week over the averaging period.

Averaging agreements must be in writing, specifying a start date and an end date. Both the employer and employee have to sign the agreement before the start date.

In addition, the agreement must include the specifics – how many weeks will be averaged in the schedule, the hours to be worked each day, and the number of times the agreement will be repeated. The employee will be given a copy of the agreement.

Employees who sign an averaging agreement will still be eligible for overtime pay (time and a half) if they work more hours than were scheduled in the agreement, and double time if they work more than 12 hours in a day.

Another change to the Employee Standards Act is a simplification of overtime rules. Overtime for most employees in B.C. is time-and-a-half after eight hours in a day or 40 hours a week, and double-time after 12 hours worked in a day.

In addition, special overtime rules have been set for sectors with unique demands, including the transportation, silviculture, agriculture, and oil and gas industries.

Rules regarding statutory holiday pay have also been changed. Only workers that have been employed for 30 calendar days, and have worked 15 of those days, will be eligible for statutory holiday pay. Holiday pay is time-and-a-half for the first 12 hours, and double-time after that. Employers also have to pay employees an average day’s pay, or give employees a paid day off.

Under the revised Act the definition of Manager has been expanded to include anyone who is responsible for supervising or directing human or other resources, or anyone who is employed in an executive capacity.

Managers are exempt from Parts 4 and 5 of the Employment Standards Act, which deal with hours of work, overtime, and statutory holiday pay.

The definition of a high-technology professional has also been expanded, which exempts employers and employees from sections of the Act regarding hours of work, overtime and statutory holidays.

While most of the changes to the act benefit employers, employees will also benefit from a set of mandatory penalties for employers that don’t comply with the Act. A first-time offender pays $500 for a breach of the Act. A second infraction costs $2,500 and a third $10,000.

Whistler Chamber of Commerce Chair John Nadeau, who is also the Branch Manager for the North Shore Credit Union, says the changes to the Act are important, and businesses and employees should become familiar with them as soon as possible.

"My only comment would be to make sure… employees know exactly where the information is. I’m a big fan of making sure that employees know their rights, and know where they stand with things," he said.

Marta Sutherland, the director of employment services for the Chambers, said employers should also take some time to familiarize themselves with the new legislation.

"As long as they understand what the significance is of something like the flexible hours, I don’t think it should make a difference. But when it becomes interesting is when contractors think ‘oh great, we can throw anything we want at them as long as it doesn’t average over 40 hours a week for four weeks’. They can’t just do that on a whim, they have to schedule it ahead of time. As long as they understand what’s involved in it, I don’t see a problem for the employees," said Sutherland.

She also said it could be a boon for a lot of resort employees that could benefit from a flexible schedule to enjoy more skiing and snowboarding time.

"Check it out, it can be a real benefit. Get in touch with the employement centre and make sure both sides (employees and employers) know what it is they are doing, why they are doing it, and the benefit for both sides."

According to Kirby Brown, the director of employee experience at Whistler-Blackcomb, Whistler’s largest employer, the changes to the Act will not change the way the mountains operate.

"Of the changes, there are only two that affect our workforce, but they’re not substantial changes," he said. "What they’ve done is relaxed certain areas of it, but made the penalties for infractions a lot higher. And for us, we religiously follow employment standards as is, so the impacts on our staff are fairly minimal."

The new overtime regulations are one of the biggest changes to affect Whistler-Blackcomb, "but that’s not necessarily a big deal for us," said Brown. If overtime is absolutely necessary for daily operations, the mountains will always pay it. "We’re so focused on the product that we will continue to plug along as we have and follow employment standards to the letter."

The other change that most affects Whistler-Blackcomb is the reduction of the minimum daily call-in from four hours to two hours. In other words, if an employee is scheduled to work, but is sent home because he or she was not required, they would have to be paid for four hours under the previous Act. Now employers only have to compensate those employees for two hours, unless they were scheduled for more than eight hours – which many Whistler-Blackcomb employees are.

"Because of the way we schedule our people, for most of our employees it doesn’t change. Everyone is on four and three schedule," Brown said.

Most employees work 10 hours a day over four days, and have three days off.

The changes to the minimum call-in pay were effective on May 30, as part of the first round of changes to the Employment Standards Act.

For more information on the Act, and how the changes might apply to employers and employees, visit the Ministry of Skills Development and Labour Web site at www.labour.gov.bc.ca/esareform/.