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December 12, 2001 - EDITORIAL
ICBA submission on proposed ESA amendments
December 12, 2001
The Honourable Graham Bruce, Minister
Ministry of Skills Development and Labour
5 Policy and Legislation Branch
P.O. Box 9591, Stn. Prov. Govt.
Victoria, BC V8W 9K4
Dear Minister:
On behalf of the Independent Contractors and Businesses Association and the construction industry, we would like to offer our comments on the proposed changes to the Employment Standards Act.
By way of background, construction is a small business industry. Over 90% of its businesses employ fewer than 10 people. However, it is one of the largest employers in British Columbia. The construction industry employs 110,000 people: more than forestry, fishing, mining and agriculture sectors combined.
Support for The Coalition of BC Businesses
ICBA is a founding member of the Coalition of BC Businesses, the umbrella group representing small and medium-sized businesses on labour and employment issues. Our organization provided input into the Coalition's brief and wholeheartedly supports its detailed submission with one reservation: the appropriateness of an industry-wide income threshold for exemption from ESA protection. Please consider our comments in the following two areas of concern to the construction industry:
Appropriate Income Level for Exemption from Act
ICBA believes, that the Act should ensure that vulnerable workers receive baseline standards in their terms and conditions of employment. Furthermore, we understand and support the concept that the Act is designed to ensure employees are not taken advantage of by employers who seek to impose unacceptable terms and conditions of employment on them. However, we believe that this rationale loses it legitimacy when applied to employees who, by virtue of high-level skills and abilities, are able to effectively negotiate terms and conditions of employment on a relatively even footing with their employer. In these circumstances, employers and employees should be left to freely negotiate mutually agreeable employment agreements.
Like the Coalition, ICBA believes that income level is an accurate gauge of an employee's need for protection from the Act. However, average compensation levels vary greatly across industry sectors suggesting income threshold above which certain provisions of the ESA would not apply may need to be set sectorally.
For example, a $40,000 earner in the hospitality industry may be an indispensable manager who has significant bargaining leverage. But a $40,000 earner in the construction industry may be an apprentice or entry-level worker without bargaining leverage.
The Coalition submission suggests a $40,000 threshold above which workers would be exempt from protection under the Act. ICBA believes a more appropriate and defensible benchmark for "high" compensation (and ability to negotiate on even footing) would be 1.5 times the average hourly wage in each sector as determined by Stats Canada. In the construction industry, this threshold would be approximately $30 per hour or $60,000 per year.
Construction Industry Exemption
Historically, the construction industry has been exempt from the notice of termination or pay in lieu of notice of termination. In fact, the Act specifically exempts the construction industry from these provisions recognizing the unique unpredictable project-based nature of the work in the industry. The exemption has been well understood and accepted by employers and employees alike.
However, in 2000, the Employment Standards Tribunal issued a decision that severely (and stupidly) restricted the application of the exemption to those construction employees working on a single site. The Tribunal ruled that employees who worked on more than one site were due notice of termination or pay in lieu. This interpretation would have the ludicrous effect of forcing employers to terminate employees after each job rather than transferring them between projects in order to keep them employed. This would place an additional bureaucratic load on employers and runs contrary to the interest of employees who would be constantly facing layoff notices to comply with the decision.
A number of groups, including the ICBA have appealed this decision to the BC Supreme Court. We are awaiting a decision, but in the meantime the uncertainty is hurting the industry and its employees.
ICBA strongly supports the Coalition's recommendation to retroactively amend the Act to explicitly restore the historically accepted and understood construction exemption to its original interpretation.
Conclusion
ICBA would like to commend the government for taking this comprehensive look at the Employment Standards Act. Balancing the need for workplace flexibility with protection of the most vulnerable employees is a difficult but an important and necessary endeavour. We look forward to working with the government to help make the changes work for all British Columbians.
Yours truly,
Philip Hochstein
Executive Vice President
See also:
The Coalition of BC Businesses: Background information
| ICBA is the voice of BC's construction industry. For further information, or if you have any questions or comments regarding this article, please contact ICBA. |
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