The Employment Standards Act applies to the majority of non-union employees in British Columbia, both during the employment and upon termination. But not everyone who works in BC is protected by the Act. This post briefly looks at two of the most common classes of employees who are not protected by the Employment Standards Act at all. These include:
- Employees of federally regulated employers; and
- Employees in certain exempt professions.
1. Employees of federally regulated employers
Employees who work for federally regulated employers are not generally covered by the Employment Standards Act. Instead, these employees will usually be covered by the Canada Labour Code. It is important to know the difference.
It is not always obvious when an employer is federally regulated. It can sometimes be difficult to know whether the Employment Standards Act or the Canada Labour Code applies. As a starting point, the Government of Canada has put together a helpful list of businesses and industries that are federally regulated. Employees of those businesses are generally covered by the Canada Labour Code instead of the Employment Standards Act. The list of Federally Regulated Businesses and Industries includes:
- Banks;
- Marine shipping, ferry and port services;
- Air transportation, including airports, aerodromes and airlines;
- Railway and road transportation that involves crossing provincial or international borders;
- Canals, pipelines, tunnels, and bridges that cross provincial borders;
- Telephone, telegraph, and cable systems;
- Radio and television broadcasting;
- Grain elevators, feed, and seed mills;
- Uranium mining and processing;
- Businesses dealing with the protection of fisheries as a natural resource;
- Many First Nations activities;
- Most federal Crown corporations;
- Private businesses necessary to the operation of a federal act.
There are many similarities between the Employment Standards Act and the Canada Labour Code. They both protect employees. For example, both the Employment Standards Act and the Canada Labour Code have rules for minimum wage, overtime pay, and holidays. But there are also many significant differences, especially for employees who have been terminated without cause.
It is important for an employee to know whether the Employment Standards Act or the Canada Labour Code applies to his or her employment. Not only are the rules different, but the procedure is different if an issue arises. Canada Labour Code complaints must be sent to the nearest Labour Program office, instead of the Employment Standards office. And in the case of an unjust dismissal complaint under the Canada Labour Code, employees have a very short 90 day time limit to file their claims. For both the Employment Standards Act and the Canada Labour Code, employees are required to act quickly to learn their rights, and be aware of any time limits.
2. Employees in certain exempt professions
Certain professions or occupations are excluded from the Employment Standards Act altogether. As of the date of writing, the categories of professionals excluded from protection under the Employment Standards Act include:
- Architects, as defined in the Architects Act;
- Members, other than honorary members, of the Organization of Chartered Professional Accountants of British Columbia under the Chartered Professional Accountants Act or a person enrolled as a student under that Act;
- Members of the Law Society of British Columbia under the Legal Profession Act or persons enrolled as articled students under that Act;
- Registrants of the College of Chiropractors of British Columbia continued under the Health Professions Act;
- Registrants of the College of Dental Surgeons of British Columbia continued under the Health Professions Act, other than registrants who are only authorized under the bylaws of that College to use the title "dental therapist" under that Act;
- Professional engineers, as defined in the Engineers and Geoscientists Act, or persons who are enrolled as an engineer in training under the bylaws of the council of the Association of Professional Engineers and Geoscientists of the Province of British Columbia;
- Persons licensed as an insurance agent or adjuster under the Financial Institutions Act;
- Members in good standing of the Corporation of Land Surveyors of the Province of British Columbia under the Land Surveyors Act or persons admitted as articled pupils under that Act;
- Registrants of the College of Physicians and Surgeons of British Columbia continued under the Health Professions Act;
- Registrants of the College of Naturopathic Physicians of British Columbia established under the Health Professions Act;
- Registrants of the College of Optometrists of British Columbia established under the Health Professions Act;
- Registrants of the College of Podiatric Surgeons of British Columbia established under the Health Professions Act;
- Persons licensed under the Real Estate Services Act;
- Persons registered under section 35 of the Securities Act;
- Members of the British Columbia Veterinary Medical Association under the Veterinarians Act; or
- Professional foresters as defined in the Foresters Act.
This does not mean that these categories of professionals have no rights at the workplace. For example, these professions are not excluded from protection under the relevant Human Rights Code legislation, Workers Compensation legislation, or the common law. But employees in these professions need to keep in mind that they may be excluded from protection under the Employment Standards Act.
By Brendan Harvey
If you’re considering making an Employment Standards Act claim or a Canada Labour Code complaint, we can advise and assist you. If you would like to schedule a meeting with Brendan Harvey or any other of our lawyers, give us a call at 604-988-1000.
