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2003 Legislative Session: 4th Session, 37th Parliament

FIRST READING

The following electronic version is for informational

purposes only.

The printed version remains the official version.

HONOURABLE GRAHAM BRUCE

MINISTER OF SKILLS DEVELOPMENT

AND LABOUR

BILL 37 – 2003

SKILLS DEVELOPMENT AND LABOUR

STATUTES AMENDMENT ACT, 2003

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Employment Standards Act

Section 1 of the Employment Standards Act, R.S.B.C. 1996, c.

113, is amended in the definition of "determination" by striking

out "22 (2)," .

Section 7 is repealed.

Section 9 is repealed and the following substituted:

Hiring children

(1) A person must not employ a child under 15

years of age unless the person has obtained the written consent of the child's

parent or guardian.

(2) A person must not employ a child under 12 years of age without the director's permission.

(3) On permitting the employment of a child under 12 years of age, the director may set the conditions of employment for the child.

(4) An employer must comply with the conditions of employment set under subsection (3).

Section 16 is repealed and the following substituted:

Employers required to pay minimum wage

(1) An employer must pay an employee at least

the minimum wage as prescribed in the regulations.

(2) An employer must not, directly or indirectly, withhold, deduct or require payment of all or part of an employee's wages in a pay period to comply with subsection (1) in relation to any other pay period.

Section 22 is amended

(

a) in subsection (1) by adding "and" at the end of paragraph

(c), by striking out ", and" in paragraph (

d) and by repealing

paragraph (e), and

(

b) by repealing subsection (2).

Section 42 is amended

(

a) by adding the following subsections:

(3.1) The employer may close an employee's time bank after one month's written notice to the employee.

(3.2) Within 6 months of closing an employee's time bank under subsection (3.1), the employer must do one of the following:

(

a) pay the employee all of the overtime wages credited to the time bank at the time it was closed;

(

b) allow the employee to use the credited overtime wages to take time off with pay;

(

c) pay the employee for part of the overtime wages credited

to the time bank at the time it was closed and allow the employee to use the

remainder of the credited overtime wages to take time off with pay. ,

and

(

b) by repealing subsections (4) and (6).

Section 86 is repealed and the following substituted:

Power to reconsider

(1) Subject to subsection (2), the director

may vary or cancel a determination.

(2) If a person appeals a determination that the director intends to vary or cancel under subsection (1), the director must vary or cancel the determination within 30 days of the date that a copy of the appeal request was received by the director.

Section 88 (2) is amended by striking out "23"

and substituting "38" .

Section 95 (

a) is amended by striking out "person"

and substituting "employer" .

Section 96 is amended by adding the following subsection:

(4) In this section, "director or officer of a corporation" includes a director or officer of a corporation, firm, syndicate or association that the director treats as one employer under

section 95.

Section 112 (2) (

a) is amended

(

a) in subparagraph (

i) by striking out "and" , and

(

b) by adding the following subparagraph:

(i.1) a copy of the director's written reasons for the

determination, and .

Section 116 (1) (

b) is amended by adding "or another

panel" after "the original panel" .

Section 126 (4) is repealed and the following substituted:

(4) The burden is on the employer to prove that,

(

a) in the case of an alleged contravention of

section 9 (1), an employee is 15 years of age or older,

(

b) in the case of an alleged contravention of

section 9 (2), an employee is 12 years of age or older, or

(

c) in the case of an alleged contravention of

Part 6, an employee's pregnancy, a leave allowed by this Act or court attendance as a juror is not the reason for terminating the employment or for changing a condition of employment without the employee's consent.

Section 127 is amended

(

a) in subsection (2) by adding the following paragraph:

(b.1) establishing conditions of employment for children

under 15 years of age that the Lieutenant Governor in Council considers necessary

or advisable to protect their health, safety, physical or emotional well-being,

education or financial interests; , and

(

b) by adding the following subsection:

(3) Regulations made under subsection (2) (b.1) may be specific or general in their application and may provide differently for children of different age groups or different industries or classes of industries.

Employment Standards Amendment Act, 2002

15 Sections 4 and 64 (

b) of the Employment Standards Amendment

Act, 2002, S.B.C. 2002, c. 42, are repealed.

Workers Compensation Act

Section 5.1 of the Workers Compensation Act, R.S.B.C. 1996,

c. 492, is amended

(

a) by renumbering the

section as

section 5.1 (1),

(

b) in subsection (1) by striking out "A worker" and substituting

"Subject to subsection (2), a worker" ,

(

c) in subsection (1) (

b) by striking out "a physician"

and substituting "a physician or a psychologist" , and

(

d) by adding the following subsections:

(2) The Board may require that a physician or psychologist appointed by the Board review a diagnosis made for the purposes of subsection (1) (

b) and may consider that review in determining whether a worker is entitled to compensation for mental stress.

(3) Section 56 (1) applies to a physician or psychologist who makes a diagnosis referred to in this section.

(4) In this section, "psychologist" means a person who is registered as a member of the College of Psychologists of British Columbia established under

section 15 (1) of the Health Professions Act or a person who is entitled to practise as a psychologist under the laws of another province.

Section 17 is amended

(

a) in subsection (1) in the definition of "child" by

striking out "18" and substituting "19" and by striking

out "21" and substituting "25" ,

(

b) in subsection (1) by repealing the definition of "federal

benefits" and substituting the following:

"federal benefits" means the benefits paid for

a dependant under the Canada Pension Plan as a result of a worker's death,

other than the death benefit payable to the estate of a worker under

section

57 of that Act. ,

(

c) in subsection (3) (a), (b), (

c) and (f) (i), (ii) and (iii) by adding

"50% of the" before "federal benefits" ,

(

d) by repealing subsection (3) (

d) and (

e) and substituting the following:

(

d) where the dependant, at the date of death of the worker, is a widow or widower who is not an invalid and is under the age of 50 years, and there are no dependent children, a monthly payment of a sum that, when combined with 50% of the federal benefits payable to or for that dependant, would equal the product of

(

i) the percentage determined by subtracting 1% from 60% for each year that the age of that dependant, at the date of death of the worker, is under the age of 50 years, and

(ii) the monthly rate of compensation under this Part that would have been payable if the deceased worker had, at the date of death, sustained a permanent total disability,

but the percentage determined under subparagraph (

i) must

not be less than 30% and the monthly payments must not be less than $879.11;

(

e) in subsection (3) (h) (

i) and (ii) by adding "for life or

a lesser period as determined by the Board" after "per month" ,

(

f) in subsection (9) (

a) by striking out everything after ";

but" and substituting "monthly payments must be made in respect

of that spouse and those children equal to the periodic payments due under the

order or agreement; or" , and

(

g) by repealing subsection (16) and substituting the following:

(16) If a dependant is entitled to receive compensation

(

a) as a result of the death of a worker, and

(

b) as a result of the subsequent death of another worker,

the total compensation payable for the dependant as a result of those deaths is an amount that the Board considers appropriate.

(16.1) The compensation payable for a dependant under subsection (16) must not

(

a) be less than the highest of the amounts that would otherwise be payable in respect of the death of any of the workers, and

(

b) be more than 90% of the average net earnings of a worker whose wage rate is the maximum wage rate established under

section 33 (6) and (7) for the year in which the last death referred to in subsection (16) (

b) occurred.

(16.2) For the purposes of subsection (16.1), "average net earnings" means the average net earnings calculated in accordance with

section 33.8.

Section 25 is amended

(

a) by repealing subsection (3) and substituting the following:

(3) On January 1 of each year, the Board must adjust,

in accordance with subsection (4), the periodic payments of compensation made

in respect of an injury or a death occurring more than 12 months before the

date of the adjustment. ,

(

b) in subsection (4) by adding "or death" after "injury" ,

and

(

c) by repealing subsection (5) and substituting the following:

(5) If the Board starts or restarts periodic payments of compensation for an injury or a death that occurred more than 12 months before the payments are started or restarted, the Board must, under this section, adjust all periodic payments as if the payments were made continuously from the date of injury or death.

Section 25.1 is repealed.

Section 25.2 (1) is amended by striking out "and

section

25.3" .

Section 25.3 is repealed.

Section 35.1 (7) is repealed and the following substituted:

(7) Subject to

section 19 (2.1) of this Act,

section 25 of this Act, as that

section read on the date

section 35.2 (5) came into force, applies to compensation paid on or after that date to a worker, irrespective of the date the worker was injured.

23 The following

section is added:

Transitional – death of worker

35.2

(1) In this section, "transition date"

means the date on which this

section comes into force.

(2) Subject to subsection (5), this Act, as amended by

the Workers Compensation Amendment Act, 2003 , applies to the death

of a worker that occurs on or after June 30, 2002.

(3) Subject to subsections (5) and (6), this Act, as it read immediately before June 30, 2002, applies to the death of a worker that occurred before June 30, 2002.

(4) Subject to subsections (5) and (6), in recalculating compensation under

section 17 (4) or (5), the Board must, if the actual date of the death of a worker was before June 30, 2002, base the recalculation on this Act as it read immediately before June 30, 2002.

(5) Subject to

section 19 (2.1) of this Act,

section

25 of this Act, as amended by the Workers Compensation Amendment Act, 2003 ,

applies to compensation paid on or after the transition date in respect of the

death of a worker irrespective of the date the worker died.

(6) Commencing on the transition date, for the purposes

of applying subsections (3) and (4), the Board must adjust the dollar amounts

referred to in sections 17 and 18 and

Schedule C of this Act, as it read immediately

before June 30, 2002, in accordance with

section 25.2 (1), as amended by the

Workers Compensation Amendment Act, 2003 .

(7) In applying

section 17, as amended by Workers

Compensation Amendment Act, 2003 , to a death that occurred on or after June

30, 2002 but before the transition date, the Board must consider payments paid

before the transition date.

24 The following

section is added:

Lay advocates

94.1

(1) A person may

(

a) give advice respecting the

interpretation or administration of the Act, the policies of the board of directors, the Board's practices and procedures or any regulations, orders or decisions under the Act, or

(

b) act on behalf of a person

(

i) by communicating with the Board, an officer or employee of the Board, the appeal tribunal or any other person acting under this Act, or

(ii) by appearing before the Board, an officer or employee of the Board or the appeal tribunal.

(2) Section 15 of the Legal Profession Act does not apply to a person while the person performs the functions referred to in subsection (1).

Section 189 (1) is amended by striking out "If the

Board cancels an order" and substituting "If the Board varies

or cancels an order" and by striking out "of the cancellation" .

Section 224 (2) (

k) is amended by striking out "sections

25.2 and 25.3;" and substituting "section 25.2;" .

Schedule C is repealed.

Commencement

(1) This Act comes into force by regulation

of the Lieutenant Governor in Council.

(2) When brought into force by regulation under subsection (1), sections 17 and 27 of this Act are deemed to have come into force on June 30, 2002 and are retroactive to the extent necessary to give them effect on and after that date.

Explanatory Notes

Employment Standards Act

SECTION 1: [Employment Standards Act, amends

section 1] amends

the definition of "determination" consequential to repeal of

section 22 (2)

of the Act by this Bill.

SECTION 2: [Employment Standards Act, repeals

section 7] is self-explanatory.

SECTION 3: [Employment Standards Act, re-enacts

section 9]

requires a person to obtain written parental consent to employ children

under 15 years of age and, in respect of children under 12 years of age, further

requires the person to obtain the director's permission;

allows the director to set conditions on the employment of children under

12 years of age.

SECTION 4: [Employment Standards Act, re-enacts

section 16] prohibits

an employer from deducting an employee's wages in one pay period to recover

an amount the employer is required by minimum wage requirements to pay the employee

in another pay period.

SECTION 5: [Employment Standards Act, amends

section 22] removes

the power of the director to authorize an assignment of wages.

SECTION 6: [Employment Standards Act, amends

section 42]

removes the 6 month time limit on dealing with overtime wages credited

to an employee's time bank;

enables an employer to close an employee's time bank with notice and requires

the employer to deal with the overtime wages credited to that time bank within

6 months of closing it.

SECTION 7: [Employment Standards Act, re-enacts

section 86] adds

a time limit of 30 days for the director to vary or cancel a determination that

has been appealed.

SECTION 8: [Employment Standards Act, amends

section 88 (2)]

extends the time period for which interest does not accumulate on a determination

or settlement.

SECTION 9: [Employment Standards Act, amends

section 95 (a)]

allows the director to treat associated entities as one employer under the Act.

SECTION 10: [Employment Standards Act, adds

section 96 (4)] clarifies

that liability for unpaid wages extends to a director or officer of an associated

corporation, firm, syndicate or association under

section 95 of the Act.

SECTION 11: [Employment Standards Act, amends

section 112 (2) (a)]

requires the person appealing a determination to provide the tribunal with the

director's written reasons for the determination.

SECTION 12: [Employment Standards Act, amends

section 116 (1) (b)]

allows the tribunal to send a matter back to the original panel or a different

panel.

SECTION 13: [Employment Standards Act, repeals and replaces

section 126

(4)] provides that the onus is on the employer to prove an employee's

age in cases of alleged contraventions under the new

section 9 (1) and (2) enacted

by this Bill.

SECTION 14: [Employment Standards Act, amends

section 127] authorizes

the Lieutenant Governor in Council to make regulations establishing conditions

of employment for children under 15 years of age.

Employment Standards Amendment Act, 2002

SECTION 15: [Employment Standards Amendment Act, 2002, repeals sections

4 and 64 (b)] repeals not in force amendments to sections 9 and 127

of the Employment Standards Act .

Workers Compensation Act

SECTION 16: [Workers Compensation Act, amends

section 5.1] provides

recognition of a psychologist's diagnosis in the mental stress provisions.

SECTION 17: [Workers Compensation Act, amends

section 17] amends

the compensation paid in the event of a worker's death as follows:

modifies the definition of "child" so that a child eligible for compensation

now includes both a child who is under 19 years of age rather than 18 years

of age and a child who regularly attends an educational institution and is

under 25 years of age rather than under 21 years of age;

modifies the definition of "federal benefits" so that this definition only

includes benefits under the Canada Pension Plan (CPP) that are paid

for a dependant as a result of a worker's death;

increases the amount of compensation payable to a surviving dependant of

a deceased worker under the Workers Compensation Act by reducing the

amount of CPP benefits deducted from this compensation to 50% of the CPP benefits

payable;

revises the rules for determining the compensation for a childless surviving

widow or widower who is under 50 years of age at the time of the worker's

death so that

the formula determining the compensation reduces the monthly payment

by 1% for each year the surviving dependant, at the time of the worker's

death, is under 50 years of age, and

those under 40 years of age receive compensation according to this

formula rather than the current lump sum payment;

clarifies that payments made under

section 17 (3) (h) (

i) and (ii) to other

dependants of a deceased worker may be made for life or for a shorter period,

as determined by the Board;

if compensation is to be paid under the Workers Compensation Act

to a separated surviving spouse who is entitled to support under a court order

or separation agreement, the compensation payment to the surviving spouse

is no longer affected if the deceased worker was not making payments in accordance

with that court order or agreement;

modifies the wording of the existing

section 17 (16) from 75% of average

earnings of a worker to 90% of a worker's average net earnings, to parallel

the changes in the Workers Compensation Amendment Act, 2002 .

SECTION 18: [Workers Compensation Act, amends

section 25] establishes

that the general indexing rule set out in

section 25 will also apply to periodic

payments made for the death of a worker.

SECTION 19: [Workers Compensation Act, repeals

section 25.1]

repeals the alternate indexing rule for periodic payments made for the death

of a worker.

SECTION 20: [Workers Compensation Act, amends

section 25.2 (1)]

removes a reference to

section 25.3 as a result of that

section being repealed

by this Bill.

SECTION 21: [Workers Compensation Act, repeals

section 25.3]

repeals the alternate indexing factor for adjusting dollar amounts in sections

17 and 18.

SECTION 22: [Workers Compensation Act, repeals and replaces

section 35.1

(7)] amends subsection (7) as a consequence of the repeal of

section

25.1 and restricts its application to compensation payable to injured workers.

SECTION 23: [Workers Compensation Act, enacts

section 35.2] establishes

the following general rules, subject to certain exceptions, respecting the application

to the workers' death of these amendments:

if a worker dies before June 30, 2002, the Workers Compensation Act ,

as it read immediately before June 30, 2002 applies with respect to the compensation

payable to the dependants of the deceased worker;

if a worker dies on or after June 30, 2002, the Workers Compensation

Act , as amended by this Act, applies with respect to the compensation

payable to the dependants of the deceased worker.

SECTION 24: [Workers Compensation Act, enacts

section 94.1] provides

that

section 15 of the Legal Professions Act does not apply to a person

who gives advice on the Workers Compensation Act or who represents a

person in a matter or proceeding under the Act.

SECTION 25: [Workers Compensation Act, amends

section 189 (1)]

requires the Board to give notice of a variation of an order under

Part 3.

SECTION 26: [Workers Compensation Act, amends

section 224 (2) (k)] removes

a reference to

section 25.3 as a result of that

section being repealed by this

Bill.

SECTION 27: [Workers Compensation Act, repeals

Schedule C] repeals

Schedule C as a consequence of the repeal of

section 17 (3) (e).

Copyright (c) 2003: Queen's Printer, Victoria, British Columbia, Canada