In what amounts to a major procedural overhaul, British Columbia has introduced legislation aimed at modernizing the way its Employment Standards Branch handles workplace complaints from non-unionized employees and temporary foreign workers.

“Although the government’s press release does not mention this, my understanding is that these amendments come in response to a significant backlog at the ESB,” says Cameron Wardell, a partner at Mathews, Dinsdale & Clark LLP. “As things stand, my clients can wait months and months for their complaints to be addressed.”

But, timeliness apart, the changes will impact employers in other ways too. “From an employer’s standpoint, perhaps the most significant proposal is that, in certain circumstances, the legislation will require employers to deposit amounts owing before appealing a determination,” Wardell says.

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From a procedural perspective, Bill 10, formally the Labour Statutes Amendment Act, gives workers guaranteed entry into the system by requiring the ESB to accept any complaint filed within the statutory timelines.

At the same time, Bill 10 gives the director of employment standards clearer authority to dismiss complaints summarily if:

  • The Employment Standards Act doesn’t apply;
  • The complaint is frivolous, vexatious, trivial, or not in good faith;
  • A complainant does not participate or fails to provide required information;
  • The issue is already before a court, tribunal, arbitrator, or mediator;
  • A decision has already been made on the same issue;
  • The dispute can be resolved through another dispute resolution process such as a grievance under a collective agreement; or
  • The complaint has been resolved by way of settlement, payment, or otherwise.

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If any of these circumstances exist, however, Bill 10 doesn’t mandate dismissal of the complaint; rather, the decision whether to investigate remains in the director’s discretion.

Conversely, the director gets expanded power to broaden investigations where complaints raise systemic issues. Because these broadened investigations may extend to other employees, employers need to be diligent in having their records ready for scrutiny.

As well, Bill 10 empowers the ESB to require that parties attend resolution hearings before launching full investigations.

“Resolution hearings are very effective,” Wardell says. “Seventy-five per cent of complaints that have resolution hearings are resolved within 30 to 45 days.”

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But the resolution hearings aren’t confidential, which means that anything said or submitted in the proceedings can be used later in the ESB’s decision and form a part of any appeal record.

The legislation also does away with the requirement for written investigation reports, a change that portends less transparency for workers and employers who want to understand the ESB’s reasoning.

Finally, Bill 10 speeds up the process by which unclaimed wages are transferred to Unclaimed BC, meaning workers can retrieve them more quickly.

While Wardell believes the changes have the potential to mitigate the backlog, he’s not sure that will happen. “I have to wonder how much the ESB will use its new powers,” he says. “It’s typical of all administrative tribunals that decision makers are uncomfortable making final decisions in a summary fashion, so even if a complaint appears frivolous, they’re inclined to let it proceed.”

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