Preliminary Matters for Employment Law (9:IV)

A. Determine Jurisdiction

The jurisdiction in which the employee is covered determines whether provincial or federal legislation applies to the employment relationship. This section will help you determine which jurisdiction the employee falls under, and which statutes apply.

1. Federal or Provincial Jurisdiction

The large majority of employees fall under provincial jurisdiction.

Employees will fall under federal jurisdiction if they are employed in connection with any federal work, undertaking, or business that is within the legislative authority of Parliament, or if they work for certain federal crown corporations. This can be a complicated constitutional question, but generally, areas of business that are federally regulated include:

• Shipping and navigation, including the operation of ships and transportation by ship anywhere in Canada
• Interprovincial or international transportation (for example, truck, rail, ferry, or shipping routes that cross a provincial or international border)
• Telecommunications companies, such as cell phone, cable, or internet providers
• Airports and air transportation, including any airline companies
• Radio broadcasting stations
• Banks (but not credit unions)
• Businesses located on First Nations reserves
• Other areas listed in section 91 of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.

Students must look to the type of work done, as well as the employer’s area of business, in order to determine jurisdiction. It is important to note that a single employer could have both federally and provincially regulated employees. Although an employer may be subject to federal jurisdiction, it does not follow that all of that employer’s employees will be governed by federal law. In some cases, additional research must be done to determine the employee’s jurisdiction. For additional details to assist in determining jurisdiction if a difficult case arises, see Actton Transport Ltd v British Columbia (Director of Employment Standards), 2008 BCSC 1495.

One action students can take to help determine jurisdiction is to perform a BC Online company search. While not always determinative, a company search will provide information regarding whether the company is provincially registered, which may help determine jurisdiction. In addition, a company search will usually provide the company’s director and registered office information.

B. Determine Applicable Legislation

1. Applicable Legislation

Once you have determined the jurisdiction, make note of which statutes apply to the employee, and then continue on to the next step in the checklist: Section II.A: Unionized vs. Non-Unionized Employees.

Note that this chapter focuses on provincial legislation. In cases where the employee is federally-regulated, this chapter can still be of assistance as the provincial and federal statutes have many similarities, but it will be necessary to read the federal statutes to determine whether a particular provision is similar.

a) Employment Standards

Provincially regulated employees are generally covered by the Employment Standards Act [ESA]. Be aware that certain professions and employees are exempt from the ESA, or parts of the ESA. Review the Employment Standards Regulations to determine if the employee is covered by the ESA.

See IV.B.10: Exceptions to the General Rule (Specialty Professions) to determine whether the ESA applies to the employee in question. See IV.B.6: Hours of Work and Overtime Pay to determine if the employee is exempt from overtime.

b) Labour Relations Code and Canada Labour Code

Provincially regulated employees who belong to a union are additionally covered by the Labour Relations Code. It should be noted that parts of the ESA may not apply to unionized employees.

Federally regulated employees are covered by the Canada Labour Code [CLC]. A significant difference between the CLC and the ESA is that the CLC confers a special right: If the employee is non-managerial, worked for at least one year, and was unjustly dismissed, his or her job can be reinstated. A complaint must be filed within 90 days (CLC, s 240(2)).

Students should be aware that in 2015 the Supreme Court of Canada granted leave to appeal the Federal Court of Appeal decision in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, which may have an impact on a CLC employer’s ability to dismiss an employee without cause, and without the employee having access to reinstatement.

c) Human Rights

Provincially regulated employees are covered by the British Columbia Human Rights Code. Federally regulated employees are covered by the Canada Human Rights Act.

d) Common Law and Contract Law

Provincially and federally regulated employees have common law employment entitlements. Causes of action, such as breach of contract due to wrongful dismissal, remain the same whether the employee is provincially or federally regulated.

Employees will also often have written contractual entitlements. Students should have employees provide them with any written employment contract or applicable workplace policy, and carefully review these documents to both clarify terms of employment and determine whether the contract is enforceable.

Unionized employees may have common law or contractual entitlements, but generally these entitlements have to be acted upon by the union that is party to the collective agreement. See Section II.A: Unionized vs. Non-Unionized Employees.

C. Determine if the Employee is Unionized or Non-Unionized

The student should determine whether the employee belongs to a union. If the employee does not belong to a union, continue on to the next step in the checklist: Section II.C: Employees vs. Independent Contractors.

Issues regarding unionized employees can be complex, and unionized employees should therefore generally be referred to their union representative or a lawyer. However, the following paragraph provides basic information for unionized employees. If an employee is a union member and has a complaint regarding the employer, he or she must first advise the union’s representative. The employee can contact either the shop steward at the workplace, or an external union representative, to see what the union can and will do. The ESA provides minimum standards that generally must be met, but collective agreements will contain other critical guidelines that the employer must follow. Usually, union contracts contain different or more onerous terms than the ESA provisions, and union members in their collective agreements can contract out of ESA limitations (ESA, s 3) regarding such matters as hours of work, overtime, statutory holidays, vacations, vacation pay, seniority retention, recall, and termination of employment or layoff. Whole sections of the ESA might not apply under a collective bargaining agreement as long as they have been addressed by the agreement. The collective agreement does not necessarily have to meet minimum guidelines for certain sections of the ESA. For more information consult the Employment Standards Branch fact sheet on collective bargaining agreements on their website at: http://www.labour.gov.bc.ca/esb/facshts/collagr.htm Unions have a duty to represent their workers fairly. An employee who feels his union has not fairly represented his interests or advanced a grievance can bring a complaint under section 12 of the Labour Code. These complaints are seldom successful, and so it is very important to have the employee document all requests for help to the union and document the union’s response. D.Determine if the Worker is an Employee or Independent Contractor Most workers are considered “employees”, but some are considered “independent contractors”, and some fall under an intermediate category sometimes referred to as “dependent contractors”. The distinction is important because independent contractors are generally not protected by the Employment