15 Oct 2018
October 15, 2018

NDP AGENDA—UPDATE

In the January 2018 edition of the Weiler Blog I reported on the directions given to Labour Minister Harry Bains with respect to introducing new laws related to employment and labour See: Labour Minister Bains Directed to Address 5 Key Areas – Is this 1992 – “Deja Vu All Over Again?”

I noted the following five directives.

  1. Establish a Fair Wage Commission to support the work of implementing the $15-per-hour minimum wage by 2021 and to bring forward recommendations to close the gap between the minimum wage and livable wages. The commission will make its first report within 90 days of its first meeting.
  1. Create a Temporary Foreign Worker registry to help protect vulnerable workers from exploitation and to track the use of temporary workers in our economy.
  1. Update employment standards to reflect the changing nature of workplaces and ensure they are applied evenly and enforced.
  1. Review and develop options with WorkSafe B.C. to increase compliance with employment laws and standards put in place to protect the lives and safety of workers.
  2. Ensure British Columbians have the same rights and protections enjoyed by other Canadians by reviewing the Labour Code (sic) to ensure workplaces support a growing, sustainable economy with fair laws for workers and businesses.

Not many legislative changes have been made since then.  The minimum wage was increased as expected and certain changes were made to the Employment Standards Act dealing with pregnancy and compassionate leaves.  No other major changes were enacted.  In my view, all of this will change dramatically in the fall and/or spring sessions of the legislature.  Employers hang on to your hats.

UPDATE ON THE FOREGOING MATTERS

 The following is a brief update of the five areas Minister Bains was directed to review:

  1. Minimum Wage

As expected, the NDP implemented the changes recommended by the Fair Wage Commission that was struck to advise on how (not if) the minimum wage should be increased to $15.  The first increase of $1.30 per hour, raising the minimum wage to $12.65, took effect June 1st 2018, with the final increase to $15.20 to take effect June 1st 2021.  Further areas will be considered by the Fair Wage Commission, such as addressing the discrepancy between the minimum wage and a living wage in BC.  What is interesting is that BC followed, to some extent, Ontario, but now it has been reported that the Doug Ford government will be putting future increases on hold.

  1. Temporary Foreign Workers Registry

On October 11th 2018, Minister Bains was quoted in the Vancouver Sun as saying that the government would introduce legislation in this area in the coming weeks.  It appears from the Minister’s comments, that the goal of the government is to not just track temporary foreign workers, but also to create some sort of enforcement mechanism.  He stated that the legislation would pave the way for the registry “to better support vulnerable foreign workers by tracking both the employers and the foreign worker recruiters.”

It appears from this newspaper report that the legislation will be directed at employers and recruiters and the purpose of such legislation will not be just to track foreign workers but also to enforce laws with respect to “vulnerable foreign workers” (however that term might be defined).  This, in turn, will likely create yet another layer of regulation for employers, especially small employers, who cannot recruit Canadian workers and therefore rely on temporary foreign workers.  We will keep you posted.

  1. Employment Standards

In June 2018. the BC Law Institute (BCLI) issued its first consultation paper and sought submissions.  The Report is 407 pages and includes 78 recommendations of which 57 recommendations are consensus recommendations.  It follows years of analysis by a large group of lawyers and professionals. Needless to say, it is an exhaustive report.  The BCLI conducted a consultation process which closed August 31st 2018.  The BCLI has indicated it will complete its final report at least by early next year.  I would assume we will see changes to the Employment Standards Act in the spring 2019 session of the legislature. Although it appears the Report is reasonably balanced, the reality is that, given the fact that the Employment Standards Act is there to protect workers’ rights, (not the rights of employers), the overall impact of the changes will likely adversely affect employers. I will provide a detailed analysis once the legislation is introduced.

  1. WorkSafeBC

As expected, the Minister has appointed new members to WorkSafeBC’s Board, including a new chair.  The government is also embarking on an ambitious project of renumbering and modernizing the language of the Workers Compensation Act to make it easier to read and understand.  The new Act is expected to be law in March 2019.  While it is not intended to make any substantive change to the laws, there might well be issues of interpretation arising from the amendments.

The Board commissioned a Report by Paul Petrie to consider enriching and broadening the compensation for injured workers.  The goal was to provide a worker-centred approach. The Board published the Petrie Report in April.  Mr. Petrie made 41 recommendations and suggested that further reviews be conducted.  The Report can be accessed here:  https://www.worksafebc.com/en/resources/about-us/reports/restoring-balance-worker-centered-approach?lang=en

The Board has directed the Policy, Regulation and Research Division to undertake an analysis of the 41 recommendations

The recommendations in the Report, especially in the area of chronic pain and mental disorders. are very troubling.  The cost implications of implementing these recommendations have yet to be analyzed.

The Minister has indicated he may ask for a review of the Act but, to date, has not done so.

I expect that further review, followed by legislation, will be introduced in 2019 – possibly as early as the spring session – as this file is a top priority for the NDP.

I am a member of an employers’ group that provides important advice and representation of employers on WorkSafeBC matters.  I urge all employers to consider joining the Employers’ Forum.  If you are interested, you can contact Doug Alley at the Employers’ Forum doug@employersforum.org. and/or access their website at https://www.employersforum.org/.

  1. Labour Relations Code

In 1992, a 3-person panel, delivered a report to the then newly elected NDP government recommending numerous and fundamental changes to the Labour Relations Code.  The government introduced many changes that favoured unions.  As a result, unionization in this province flourished until the Liberals made changes in 2002.

In February 2018, Minister Bains appointed a 3-person panel to review the Labour Relations Code.  The Labour Review Panel finished its deliberations and produced a comprehensive Report on changes to the Code.  That Report was given to Minister Bains on August 31st 2018.  For some unexplained reason, the Minister, as of the writing of this blog, has not released the Report.  No explanation for this lengthy delay has been offered.

I expect that the Government will introduce fundamental changes to the Code in 2019.  I will, of course, provide a summary of the Report’s recommendations and then on any subsequent legislation.  Employers should start now to prepare for potential changes, including the potential  removal of the secret ballot vote.

COMMUNITY BENEFITS AGREEMENT

In addition to the above initiatives, the NDP have taken steps to change how large construction projects undertaken by the Government will be carried out, starting with the building of the Pattullo Bridge.  The government will use project labour agreements to build large publicly-funded infrastructure projects.  It has been reported that this approach will raise the cost of construction by hundreds of millions of dollars.  It will require workers to join the Building Trades unions if they want to work on these projects.  Many contractors are being shut out.  Non-union employees and non-Building Trade unions, such as CLAC, will be denied the right to work on these projects.  The requirement that all employees must be members of the Building Trades unions appears to be a pure gift to the Building Trade Unions.

Some might argue that if they are not in the construction business, this will not directly affect them.  But such a view is short-sighted.  Not only will the Building Trades capture a large portion of construction activity they had previously lost, the coffers of the unions will be filled and may be used for other purposes, such as organizing non-union workplaces.

The Independent Contractors and Businesses Association, the BC Chamber of Commerce, a number of contractors and CLAC have started an action in the Supreme Court of British Columbia by filing a Petition challenging the “Building Trades only” provisions of the project agreement. They argue that the imposition of such a requirement is an unreasonable and ultra vires exercise of statutory discretion and, further, it is a violation of the Canadian Charter of Rights and Freedoms.  The Petition makes for interesting reading and reflects a very well-thought-out argument by counsel for the Petitioners.  For those who would like to review the Petition, please email me at mweiler@weilerlaw.ca and I will send you a copy.

SUMMARY

Lots will happen in the next few months that will adversely affect employers.  I will continue to report on these developments.  But I urge all employers to become aware of these changes as they are introduced and be ready to address them in your business.

 

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The content in the Michael Weiler Employment + Labour newsletters and blog is for your general information and should not be taken as legal advice.  If you have a specific problem, please contact Michael Weiler to discuss your situation.