In May 2002, the B.C. government introduced Bill 48, the Employment Standards Amendment Act which contained a broad union derogation provision that would allegedly enable both workers and employers to benefit from increased workplace “flexibility” by providing “opt out” provisions for unionized employees from the core minimum legal standards mandated by the B.C. Employment Standards Act. In reality, however, according to a recent study by the Canadian Centre of Policy Alternatives, the effect of Bill 48, by eliminating the “meet or exceed provisions” has been to strip unionized workers of their basic rights enshrined in the ESA and has resulted in substandard working conditions and, potentially, a future Charter challenge.
The Provenance of Bill 48
The predecessor of Bill 48 can be found in Social Credit party Premier Bill Bennett’s controversial amendment to the B.C. Employment Standards Act (hereinafter “ESA”) in 1983 which excluded unionized workers from the core protections of the ESA. Although Bennett’s 1983 amendment was repealed by the NDP government in 1992, employer organizations lobbied strenuously in favour of retention of the provision, arguing that parties to collective bargaining should have the right to create their own resolutions to issues covered by the Employment Standards Act, unhampered by legislated legal minimum standards. The following years saw a concerted effort by two major employer organizations, the coalition of B.C. Businesses and the Business Council of B.C., to pressure the government to make changes to the ESA, relying on a policy document which asserted that government-mandated basic workplace standards protecting employees “should not preclude employees and employers from agreeing to variations on those standards to meet their mutual interests”.
In a 2001 submission to Gordon Campbell’s Liberal government, the Business Council of B.C. called for a reinstatement of the 1983 exclusionary provision, arguing that “employment standards should not interfere with the daily operations of unionized worksites”. Following a consultation process in which the respondents, when asked whether workers covered by collective agreements should be protected by the ESA, were given only the options advanced by business associations and were granted merely twenty-eight days to reply, all employer organizations, predictably, supported some form of exclusion of unionized workers from the ESA, while all unions opposed any such exclusion. In spite of this opposition from unions, from workers’ rights groups and from such notable public figures as the 1993 Employment Standards Review Commissioner Mark Thompson who in a letter to the Assistant Deputy Minister of Skills Development and Labour, said that such an exclusionary policy was unwise “because it opens the door to corrupt arrangements between employers and pseudo unions… [which] now exist in BC”, Bill 48 was introduced in May 2002 and passed in the BC legislature, incorporating language that actually expanded the scope of the collective agreement exclusions from the original 1983 provision.
Bill 48: Opting Out of Legal Minima
For eight years, from 1994 to 2002, employees covered by a collective agreement were deemed to have rights and benefits at least equal to those in the Employment Standards Act, regardless of the scope of the governing collective agreement: the “meet or exceed” provisions. After the passage of Bill 48, however, in a feature of employment law unique in Canada, parties to a collective agreement could “opt out” of the legal protections of the Act and agree to conditions of employment below or contrary to what all other workers are required to receive by law, if their collective agreements contain any language regarding the specific provisions. Such provisions include those concerning hours of work and overtime, statutory holidays, annual vacations or vacation pay, paydays, termination of employment and layoff, termination pay and payroll records. Initially, one might presume that such exclusion is immaterial because employees covered by a collective agreement have recourse to the union for protection, and that the existing collective agreement contains provisions well above the minimum standards prescribed in the ESA. Fairey and McCallum, however, in “Negotiating Without a Floor: Unionized Worker Exclusion from BC Employment Standards”, articulate four compelling reasons why all workers, including unionized employees, should have access to the protections afforded by the ESA which bear mention.
Reasons ESA Protections are Important to Unionized Workers
1) Bill 48 Denies Unionized Employees the Protections of Government Enforcement of the Law
Prior to the passage of Bill 48, employees covered by a collective agreement could grieve any provision in the agreement which fell below any ESA minimum and have the provision declared illegal. Now, unionized workers no longer have recourse to the any of the wage recovery mechanisms of the ESA, the powers of enforcement of the Employment Standards Branch or the grievance procedure through the Labour Relations Board.
2) Unions Must “Re-Win” Basic Rights
The Employment Standards Act sets out minimum workplace protections and benefits which bind employers regarding issues such as minimum wage, minimum and maximum hours of work, overtime pay and statutory holidays. Such standards are meant to provide a basis for negotiation of improved conditions during collective bargaining between unions and employers. With the advent of Bill 48, however, because unions have been excluded from the minimum standards stipulated in the ESA, unions have been compelled to allocate time and resources battling for the basic rights that other workers possess automatically, rather than focusing on improving working conditions for union members.
3) Employers Exploiting Lacunae in Collective Agreements
Because many collective agreements don’t cover every issue dealt with in the Employment Standards Act, prior to Bill 48, when an agreement was silent on an issue, the ESA minima were deemed to apply. Now, in the absence of this default application of the ESA and as a result of the failure of the B.C. government to allow unions to re-open their collective agreements for revision prior to the passage of Bill 48, some employers are taking advantage of lacunae in collective agreements to deny workers the minimum ESA protections. Indeed, any collective agreement in effect as of May 2002 that contained “any provision” whatsoever, regardless of whether it was substandard or contained a glaring omission was, by Bill 48, legislated into an exclusion status without recourse. A particularly egregious example of the application of this principle is an October 2005 decision cited by Fairey and McCallum in which a laid-off Steelworker was denied a grievance against the employer for not providing eight weeks wages in lieu of notice of termination pursuant to the ESA because the collective agreement provided only for severance in the event of a plant closure. The arbitrator found that because the agreement contained specific language providing for the payment of severance (in spite of the fact it was limited to situations of plant closure) and the ESA, in section 3(2) contained a provision regarding “termination of employment” no differentiation between “severance pay” and “termination pay” was necessary. The minimum standards for terminations or layoffs in the ESA didn’t apply because the collective agreement “addressed” a subject set out in Section 3(2) of the ESA.
4) Collaboration Between Employer and “Alternative” Employer-Accommodating Unions
When the ESA prohibited contracting out of its provisions from 1994 to 2001, applying pressure on unions during collective bargaining to accept working conditions lower than the minimum standards or forcing a union to strike over employer demands for substandard provisions would have been an “unfair labour practice”. Now, employees working under a substandard agreement no longer have such recourse. Further, as Professor Thompson warned, Bill 48 created incentive for employers to seek out and certify unions which will “opt out” of the legal protections of the ESA and agree to substandard conditions of employment.
With reference to BC’s largest “employer accommodating union”, the Christian Labour Association of Canada, Fairey and McCallum found that of the thirty-two CLAC agreements negotiated after Bill 48, twenty-eight contained at least one substandard condition relative to the core provisions of the new ESA. In one notable instance, a Letter of Understanding between JJM Construction Ltd and CLAC Local 67, employees’ regular rates of pay were reduced by twenty percent for work in excess of 40 hours per week and on weekends and holidays before overtime rates apply, while the Employment Standards Act would have required the premium paid to be based on the employees’ regular rates and pay: JJM Construction’s agreement with the extremely “cooperative” CLAC clearly violated the ESA as the overtime rates of pay are 20% less than they would have been under the legal minima mandated by the ESA.
Conclusion
It is interesting to note that in 1996, Ontario attempted to introduce a similar piece of legislation (Bill 49) which would have allowed employer and unions to negotiate their own employment standards as part of the Harris government’s policy to increase labour market “flexibility”. Bill 49 was quickly withdrawn after a coalition of unions, workers’ rights advocates and legal clinics (the “Employment Standards Working Group”) managed to draw attention and opposition to the Harris government proposal. British Columbia, unfortunately, did not have the benefit of this widespread public opposition to Bill 48 and unionized workers are now suffering the consequences of the inequitable, arbitrary initiative which promotes corrupt arrangements between employers and “employer-influenced” unions and deprives unionized workers of the basic rights that should be (and once were) guaranteed to all employees.
I agree with Fairey and McCallum’s recommendation that section 3(2) of the Employment Standards Amendment Act excluding unionized workers from core provisions of the ESA be repealed, and the “meet or exceed” provisions of the 1994-2001 Act be returned so as to ensure that any lacunae in collective agreements may be filled by recourse to the Employment Standards Act. Further, the Employment Standards Branch should assume its previous role in scrutinizing collective agreements, thereby granting unionized employees access to effective enforcement measures.
olels
Ryan Edmonds
Rebecca Zaretsky
Samantha Scott
Corinna Traill
Bill 48: How the B.C. Government Deprived Unionized Workers of Basic Rights and Protections
Published January 12, 2010 Cases , Commentary , Labour Leave a CommentIntroduction
In May 2002, the B.C. government introduced Bill 48, the Employment Standards Amendment Act which contained a broad union derogation provision that would allegedly enable both workers and employers to benefit from increased workplace “flexibility” by providing “opt out” provisions for unionized employees from the core minimum legal standards mandated by the B.C. Employment Standards Act. In reality, however, according to a recent study by the Canadian Centre of Policy Alternatives, the effect of Bill 48, by eliminating the “meet or exceed provisions” has been to strip unionized workers of their basic rights enshrined in the ESA and has resulted in substandard working conditions and, potentially, a future Charter challenge.
The Provenance of Bill 48
The predecessor of Bill 48 can be found in Social Credit party Premier Bill Bennett’s controversial amendment to the B.C. Employment Standards Act (hereinafter “ESA”) in 1983 which excluded unionized workers from the core protections of the ESA. Although Bennett’s 1983 amendment was repealed by the NDP government in 1992, employer organizations lobbied strenuously in favour of retention of the provision, arguing that parties to collective bargaining should have the right to create their own resolutions to issues covered by the Employment Standards Act, unhampered by legislated legal minimum standards. The following years saw a concerted effort by two major employer organizations, the coalition of B.C. Businesses and the Business Council of B.C., to pressure the government to make changes to the ESA, relying on a policy document which asserted that government-mandated basic workplace standards protecting employees “should not preclude employees and employers from agreeing to variations on those standards to meet their mutual interests”.
In a 2001 submission to Gordon Campbell’s Liberal government, the Business Council of B.C. called for a reinstatement of the 1983 exclusionary provision, arguing that “employment standards should not interfere with the daily operations of unionized worksites”. Following a consultation process in which the respondents, when asked whether workers covered by collective agreements should be protected by the ESA, were given only the options advanced by business associations and were granted merely twenty-eight days to reply, all employer organizations, predictably, supported some form of exclusion of unionized workers from the ESA, while all unions opposed any such exclusion. In spite of this opposition from unions, from workers’ rights groups and from such notable public figures as the 1993 Employment Standards Review Commissioner Mark Thompson who in a letter to the Assistant Deputy Minister of Skills Development and Labour, said that such an exclusionary policy was unwise “because it opens the door to corrupt arrangements between employers and pseudo unions… [which] now exist in BC”, Bill 48 was introduced in May 2002 and passed in the BC legislature, incorporating language that actually expanded the scope of the collective agreement exclusions from the original 1983 provision.
Bill 48: Opting Out of Legal Minima
For eight years, from 1994 to 2002, employees covered by a collective agreement were deemed to have rights and benefits at least equal to those in the Employment Standards Act, regardless of the scope of the governing collective agreement: the “meet or exceed” provisions. After the passage of Bill 48, however, in a feature of employment law unique in Canada, parties to a collective agreement could “opt out” of the legal protections of the Act and agree to conditions of employment below or contrary to what all other workers are required to receive by law, if their collective agreements contain any language regarding the specific provisions. Such provisions include those concerning hours of work and overtime, statutory holidays, annual vacations or vacation pay, paydays, termination of employment and layoff, termination pay and payroll records. Initially, one might presume that such exclusion is immaterial because employees covered by a collective agreement have recourse to the union for protection, and that the existing collective agreement contains provisions well above the minimum standards prescribed in the ESA. Fairey and McCallum, however, in “Negotiating Without a Floor: Unionized Worker Exclusion from BC Employment Standards”, articulate four compelling reasons why all workers, including unionized employees, should have access to the protections afforded by the ESA which bear mention.
Reasons ESA Protections are Important to Unionized Workers
1) Bill 48 Denies Unionized Employees the Protections of Government Enforcement of the Law
Prior to the passage of Bill 48, employees covered by a collective agreement could grieve any provision in the agreement which fell below any ESA minimum and have the provision declared illegal. Now, unionized workers no longer have recourse to the any of the wage recovery mechanisms of the ESA, the powers of enforcement of the Employment Standards Branch or the grievance procedure through the Labour Relations Board.
2) Unions Must “Re-Win” Basic Rights
The Employment Standards Act sets out minimum workplace protections and benefits which bind employers regarding issues such as minimum wage, minimum and maximum hours of work, overtime pay and statutory holidays. Such standards are meant to provide a basis for negotiation of improved conditions during collective bargaining between unions and employers. With the advent of Bill 48, however, because unions have been excluded from the minimum standards stipulated in the ESA, unions have been compelled to allocate time and resources battling for the basic rights that other workers possess automatically, rather than focusing on improving working conditions for union members.
3) Employers Exploiting Lacunae in Collective Agreements
Because many collective agreements don’t cover every issue dealt with in the Employment Standards Act, prior to Bill 48, when an agreement was silent on an issue, the ESA minima were deemed to apply. Now, in the absence of this default application of the ESA and as a result of the failure of the B.C. government to allow unions to re-open their collective agreements for revision prior to the passage of Bill 48, some employers are taking advantage of lacunae in collective agreements to deny workers the minimum ESA protections. Indeed, any collective agreement in effect as of May 2002 that contained “any provision” whatsoever, regardless of whether it was substandard or contained a glaring omission was, by Bill 48, legislated into an exclusion status without recourse. A particularly egregious example of the application of this principle is an October 2005 decision cited by Fairey and McCallum in which a laid-off Steelworker was denied a grievance against the employer for not providing eight weeks wages in lieu of notice of termination pursuant to the ESA because the collective agreement provided only for severance in the event of a plant closure. The arbitrator found that because the agreement contained specific language providing for the payment of severance (in spite of the fact it was limited to situations of plant closure) and the ESA, in section 3(2) contained a provision regarding “termination of employment” no differentiation between “severance pay” and “termination pay” was necessary. The minimum standards for terminations or layoffs in the ESA didn’t apply because the collective agreement “addressed” a subject set out in Section 3(2) of the ESA.
4) Collaboration Between Employer and “Alternative” Employer-Accommodating Unions
When the ESA prohibited contracting out of its provisions from 1994 to 2001, applying pressure on unions during collective bargaining to accept working conditions lower than the minimum standards or forcing a union to strike over employer demands for substandard provisions would have been an “unfair labour practice”. Now, employees working under a substandard agreement no longer have such recourse. Further, as Professor Thompson warned, Bill 48 created incentive for employers to seek out and certify unions which will “opt out” of the legal protections of the ESA and agree to substandard conditions of employment.
With reference to BC’s largest “employer accommodating union”, the Christian Labour Association of Canada, Fairey and McCallum found that of the thirty-two CLAC agreements negotiated after Bill 48, twenty-eight contained at least one substandard condition relative to the core provisions of the new ESA. In one notable instance, a Letter of Understanding between JJM Construction Ltd and CLAC Local 67, employees’ regular rates of pay were reduced by twenty percent for work in excess of 40 hours per week and on weekends and holidays before overtime rates apply, while the Employment Standards Act would have required the premium paid to be based on the employees’ regular rates and pay: JJM Construction’s agreement with the extremely “cooperative” CLAC clearly violated the ESA as the overtime rates of pay are 20% less than they would have been under the legal minima mandated by the ESA.
Conclusion
It is interesting to note that in 1996, Ontario attempted to introduce a similar piece of legislation (Bill 49) which would have allowed employer and unions to negotiate their own employment standards as part of the Harris government’s policy to increase labour market “flexibility”. Bill 49 was quickly withdrawn after a coalition of unions, workers’ rights advocates and legal clinics (the “Employment Standards Working Group”) managed to draw attention and opposition to the Harris government proposal. British Columbia, unfortunately, did not have the benefit of this widespread public opposition to Bill 48 and unionized workers are now suffering the consequences of the inequitable, arbitrary initiative which promotes corrupt arrangements between employers and “employer-influenced” unions and deprives unionized workers of the basic rights that should be (and once were) guaranteed to all employees.
I agree with Fairey and McCallum’s recommendation that section 3(2) of the Employment Standards Amendment Act excluding unionized workers from core provisions of the ESA be repealed, and the “meet or exceed” provisions of the 1994-2001 Act be returned so as to ensure that any lacunae in collective agreements may be filled by recourse to the Employment Standards Act. Further, the Employment Standards Branch should assume its previous role in scrutinizing collective agreements, thereby granting unionized employees access to effective enforcement measures.