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Volume 45, No. 22

B.C. Reg. 307/2002

The British Columbia Gazette,

Part II

December 3, 2002

B.C. Reg. 307/2002, deposited November 22, 2002, pursuant to the EMPLOYMENT STANDARDS AMENDMENT ACT, 2002 [Section 66] and the EMPLOYMENT STANDARDS ACT [Section 127]. Order in Council 1005//2002, approved and ordered November 21, 2002.

On the recommendation of the undersigned, the Lieutenant Governor, by and with the advice and consent of the Executive Council, orders that, effective at the end of the day on November 29, 2002,

(

a) sections 1 (b), (c), (

d) and (h), 5, 15 to 17, 19 to 21, 23, 36 (b), 55, 59 to 61 and 64 (

c) and (

f) of the Employment Standards Amendment Act, 2002, S.B.C. 2002, c. 42, are brought into force by this regulation, and

(

b) the Employment Standards Regulation, B.C. Reg. 396/95, is amended as set out in the attached Schedule. — G. BRUCE, Minister of Skills Development and Labour; C. CLARK, Presiding Member of the Executive Council.

Schedule

Section 1 (1) of the Employment Standards Regulation, B.C. Reg. 396/95, is amended

(

a) by repealing the

definitions of "long-distance truck driver" and "manager" and substituting the following:

"long haul truck driver" means a person employed to drive a truck, usually for a distance exceeding a 160 km radius from their home terminal;

"manager" means

(

a) a person whose principal employment responsibilities consist of supervising or directing, or both supervising and directing, human or other resources, or

(

b) a person employed in an executive capacity; , and

(

b) by adding the following definition:

"short haul truck driver" means a person employed to drive a truck, usually for a distance within a 160 km radius from their home terminal; .

Section 3 (2) (

c) is amended by striking out "3 years." and substituting "2 years.".

Section 6 (5) (

b) is amended by striking out "3 years" and substituting "2 years".

Section 18 (5) (

c) is amended by striking out "3 years" and substituting "2 years".

5 Sections 19 to 21 are repealed.

Section 23 is amended by striking out "double the regular wage." and substituting "1 1/2 times the regular wage.".

Section 24 is repealed.

Section 26 is amended by striking out "under

section 76 (3)" and substituting "under

section 76 (2)".

Section 27 (

a) is amended by striking out "70 (5) or".

10 Sections 28 and 29 are repealed and the following substituted:

Administrative penalties

(1) Subject to

section 81 of the Act and any right of appeal under

Part 13 of the Act, a person who contravenes a provision of the Act or this regulation, as found by the director in a determination made under the Act, must pay the following administrative penalty:

(

a) if the person contravenes a provision that has not been previously contravened by that person, or that has not been contravened by that person in the 3 year period preceding the contravention, a fine of $500;

(

b) if the person contravenes the same provision referred to in paragraph (

a) in the 3 year period following the date that the contravention under that paragraph occurred, a fine of $2 500;

(

c) if the person contravenes the same provision referred to in paragraph (

a) in the 3 year period following the date that the contravention under paragraph (

b) occurred, a fine of $10 000.

(2) The penalties imposed under subsection (1) apply to the person only in respect of the location where the contravention occurred.

(3) Despite subsection (2), if an employer dispatches an employee from one location to another worksite, a contravention that occurs at that other worksite is considered to be, for the purposes of subsection (1), a contravention at the location from which the employee was dispatched.

(4) If an administrative penalty is imposed on a person, a prosecution under the Act or this regulation for the same contravention may not be brought against the person.

(5) A person who is subject to an administrative penalty under this

section must pay the amount to the minister charged with the administration of the Financial Administration Act.

(6) Subsections (1) to (5) apply only in respect of contraventions that occur on or after November 30, 2002.

(7) In subsection (8), "former provisions" is a reference to sections 28 and 29 and Appendix 2 of this regulation, as those provisions read immediately before November 30, 2002.

(8) The former provisions apply, despite their repeal, for purposes of contraventions of the Act and this regulation that occurred before November 30,

Section 34.2 is amended

(

a) in subsection (2) by striking out "Sections 34, 40 and 41 of the Act do not apply" and substituting "section 40 of the Act does not apply",

(

b) by repealing subsection (3),

(

c) in subsection (4) by striking out "Despite subsection (3), an employer" and substituting "An employer" and by striking out "double the regular wage." and substituting "1 1/2 times the regular wage.", and

(

d) by repealing subsection (5).

Section 35 (1) is amended by striking out "31,".

Section 37.1 is amended

(

a) in subsection (2) by striking out "Sections 35 and 40 to 42" and substituting "Sections 35, 40 and 42", and

(

b) in subsection (3) by striking out "at least double the regular wage." and substituting "at least 1 1/2 times the regular wage.".

Section 37.2 is amended by striking out "Sections 31 to 35, 36 (1) and 40 to 42" and substituting "Sections 32 to 35, 36 (1), 40 and 42".

section 37.3 is repealed and the following substituted:

Truck drivers

37.3

(1) Sections 35, 40 and 42 (2) of the Act do not apply to a person employed as a long haul or short haul truck driver.

(2) An employer who requires or allows a long haul truck driver to work more than 60 hours in a week must pay the employee at least 1 1/2 times the employee's regular wage for the hours worked in excess of 60 hours in a week.

(3) An employer who requires or allows a short haul truck driver to work more than 9 hours in a day or 45 hours in a week must pay the employee at least

(a) 1 1/2 times the employee's regular wage for the hours worked in excess of 9 hours in a day, and

(b) 1 1/2 times the employee's regular wage for the hours worked in excess of 45 hours in a week.

(4) An employee's time bank, as set out in

section 42 (1) of the Act, must be credited at the rates required under subsection (2) or (3) of this section.

(5) For the purpose of calculating weekly overtime under subsection (3) (b), only the first 9 hours worked by an employee in each day are counted, no matter how long the employee works on any day of the week.

Section 37.4 (2) is amended by striking out "31,".

Section 37.5 is repealed and the following substituted:

Oil and gas field workers — hourly rate of pay

37.5

section 36 (1) of the Act does not apply in the oil and gas well drilling and servicing industry in an occupation listed in Appendix

Section 37.51 is amended

(

a) in subsection (1) by striking out "referred to in Appendix 3" and substituting "or water truck operator referred to in Appendix 3 or a vacuum worker referred to in Appendix 4",

(

b) in subsection (4) by striking out ", at double the regular rate,", and

(

c) by adding the following subsection:

(5) The rate of pay for the hours referred to in subsection (4) is as follows:

(a) 1 1/2 times the employee's regular wage if the total hours worked or earned that day are 12 hours or fewer;

(

b) double the employee's regular wage if the total hours worked or earned that day are more than 12 hours.

Section 37.6 is amended

(

a) in subsection (1) by striking out "If the majority of employees in an occupation listed in Appendix 4 of an employer in the oil and gas well drilling and servicing industry have approved in writing" and substituting "For employees in an occupation listed in Appendix 4 who work for an employer in the oil and gas well drilling and servicing industry and who have",

(

b) in subsection (1) (

c) by striking out "sections 35, 36 (1), 40 and 41 of the Act do not apply" and substituting "section 36 (1) of the Act does not apply", and

(

c) by repealing subsections (3) to (6).

Section 37.7 is amended

(

a) in subsection (1) by striking out "Sections 31, 33, 35, 36 (1), 37 and 40 to 42 (2)" and substituting "Sections 33, 35, 36 (1), 40 and 42 (2)",

(

b) by repealing subsection (4), and

(

c) by adding the following subsection:

(6.1) A log harvesting worker's time bank, as set out in

section 42 (1) of the Act, must be credited at the rates required under subsections (2), (5) (

a) and (6) (a).

Section 37.8 is amended

(

a) in subsection (1) by repealing the definition of "high technology professional" and substituting the following:

"high technology professional" means an employee who is primarily engaged in the investigation, analysis, design, development, implementation, operation or management of information systems based on computer and related technologies through the objective application of specialized knowledge and professional judgment; , and

(

b) by repealing subsections (3) and (4) and substituting the following:

(3) An employee of a high technology company who is not a high technology professional may enter into an averaging agreement with his or her employer under

section 37 of the Act if the employer and employee also agree in writing that the scheduling requirement under

section 37 (2) (a) (iv) of the Act does not apply.

(4) If an employee and an employer enter into the averaging agreement referred to in subsection (3) of this section,

(a)

section 37 (2) (b), (3), (6), (10) and (12) of the Act do not apply to that averaging agreement, and

(b)

section 37 (2) (a) (

i) to (iii), (

v) and (vi), (2) (c), (4), (5), (7) to (9), (11), (13) and (14) are deemed to be incorporated into the averaging agreement as terms of the agreement.

Section 37.9 is amended

(

a) in subsection (1) by striking out "40, 41, and 42 (2)" and substituting "40 and 42 (2)",

(

b) in subsections (3) (

c) and (4) (

b) by striking out "11 hours" and substituting "12 hours",

(

c) in subsection (5) (

a) and (

b) by striking out "double the piece rate" and substituting "1 1/2 times the piece rate.",

(

d) in subsection (6) by striking out "under

section 37.9 (3) of this Regulation." and substituting "under subsection (3), (4) or (5) of this section.",

(

e) in subsection (7) by striking out "An employer may charge a silviculture worker a fee for lodging," and substituting "If the employee agrees in writing, the employer may charge a silviculture worker a fee for lodging provided by the employer",

(

f) in subsection (8) by striking out "except for sections 48 and 49," and substituting "except

section 48,", and

(

g) in subsection (8) by adding "or" after paragraph (a), by striking out "or" after paragraph (b), and by repealing paragraph (c).

23 The following sections are added:

Aquaculture — fin fish workers

37.12

(1) Sections 35, 36 (1) and 40 of the Act do not apply to an employee at a fish farm site who has worked or earned an average of at least 35 hours per week in a one to 8 week period which is specified by the employer before the work begins.

(2) If an employer requires an employee to work at a fish farm site on a 24-hour live-in basis, the employer must include in each 24-hour period

(

a) a rest period of 8 or more consecutive hours, and

(

b) a total of at least 12 hours of rest.

(3) section 1 (2) of the Act does not apply to a rest period or rest referred to in subsection (2).

(4) For each interruption of a rest period or rest referred to in subsection (2), the employer must pay the employee for the greater of

(a) 2 hours, or

(

b) the hours actually worked during the interruption.

(5) The rate of pay for the hours referred to in subsection (4) is as follows:

(a) 1 1/2 times the employee's regular wage if the total hours worked or earned that day is 12 hours or fewer;

(

b) double the employee's regular wage if the total hours worked or earned that day is more than 12 hours.

(6) Sections 33, 35, 36 (1) and 40 of the Act do not apply to an employee who is required to work at a fish farm site on a 24-hour live-in basis.

(7) An employer who requires an employee to work on a fish farm site on a 24-hour live-in basis must pay the employee, at 1 1/2 times the regular rate, for all hours worked in excess of an average of 40 hours per week in a one to 8 week period which is specified by the employer before the work begins.

Mining

37.13

(1) In this section, "mining employer" means the employer of an employee who works for a surface mining operation regulated under the provisions of the

Mines Act .

(2) A mining employer may institute a work

schedule which provides for a regular

schedule of hours of 12 per day and a shift cycle of 4 days at work and 4 days off work, which cycle repeats over a period of 8 consecutive weeks.

(3) The shift

schedule referred to in subsection (2) may begin on any day of the week, but the shift cycle of 4 days on and 4 days off must remain constant over the 8 week period.

(4) A mining employer who institutes a work

schedule under subsection (2) must pay overtime as follows:

(

a) daily overtime at the rate of double the regular wage must be paid for all hours worked in excess of 12 hours in a day;

(

b) weekly overtime at the rate of 1 1/2 times the regular wage must be paid for all hours worked in excess of 40 hours per week averaged over the 8 week period.

(5) For the purpose of calculating weekly overtime under subsection (4) (b), only the first 12 hours worked by an employee in each day are counted.

(6) Daily overtime under subsection (4) (

a) must be paid in the pay period for which the overtime is worked.

(7) Sections 35, 37 and 40 of the Act do not apply to a mining employer in respect of employees who are covered by the work

schedule set out in this section.

Commission sales

37.14

(1) A salesperson paid entirely or partly by commission is excluded from sections 35 and 40 and

Part 5 of the Act on the condition that all wages earned by the employee in a pay period exceed the wages that would be payable under those provisions when calculated at the greater of the employee's base rate or the minimum wage under the Act.

(2) section 16,

Part 4 except

section 39, and

Part 5 of the Act do not apply to a salesperson who is paid entirely or partly by commission and who is employed to sell, or sell a lease arrangement for, any of the following products:

(

a) automobiles and trucks;

(

b) heavy industrial or agricultural equipment;

(

c) recreation vehicles or campers;

(

d) sailing or motor vessels.

Foster care

37.15 The Act does not apply to

(

a) a person providing foster care in their place of residence to children or adults if the foster care situation meets

(

i) criteria established by the provincial government to receive or deliver foster care services, or

(ii) criteria established by a health authority, or any other designated authority, to receive or deliver foster care services if the provincial government has delegated its authority to that body to establish criteria, or

(

b) a person providing relief to a person referred to in paragraph (a).

Section 38.1 (1) (k) (iii) is amended by striking out "3 years." and substituting "2 years.".

Section 41 is repealed.

Section 42 (1) is amended by striking out "Sections 31 and 33 of the Act do not apply" and substituting "Section 33 of the Act does not apply".

Section 44 is amended by striking out "Sections 40 and 41 of the Act do not apply" and substituting "Section 40 of the Act does not apply".

Section 48 is amended by striking out "of the Mediation Division".

29 Appendices 1 and 2 are repealed.

30 Appendix 3 is amended by adding the following:

Water truck operators engaged in the provision of water for mudding and lubrication for drilling, and for the watering of roads accessing the drill site.

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