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Construction Workers under the BC Employment Standards Act – Important Notes

Jessica Gibson

Associate
July 6, 2022

The Employment Standards Act (“ESA”) is the legislation many employees and employers in British Columbia refer to when determining employees’ rights within different circumstances, such as terminations, layoffs, calculation of overtime and leaves. Certain types of employees, however, are exempt from the ESA’s provisions due to the nature of their work. For example, construction workers are generally considered exempt from the requirements of sections 63 and 64 of the ESA which require dismissal pay or notice on dismissal. This is a very important exception if you run a construction business!

Section 63 of the ESA details an employer’s liability to an employee resulting from the length of time that the employee has worked for their employer. Under section 63, an employer is obligated to either pay an employee severance upon the termination of their employment or provide the employee notice (or a combination of severance and notice) depending on how long the employee worked with their employer.

Section 64 of the ESA details an employer’s obligation to provide written notice or severance instead of notice when the employment of 50 or more employees at a single location is to be terminated within any 2-month period.

Construction work that is exempt from sections 63 and 64 of the ESA under section 65(1)(e) is defined by two components:

1.      The employee must have been employed at one or more construction sites; and

2.      The employer’s principal business must be construction.

Under section 1 of the ESA, “construction” means “the construction, renovation, repair or demolition of property or the alteration or improvement of land”.

If, for example, an employee typically works on the employer’s premises, such as a shop, and rarely goes to a construction site, this subsection would not apply to that employee. If the employer’s principal business is not construction, this subsection would also not apply. If the subsection does not apply, then that employee would be covered under sections 63 and 64 of the ESA and would be owed notice or severance or both upon the termination of their employment following their probationary period with their employer.

An example where the exemption would apply would be where an employee is employed putting roofs on new houses by a company whose business is comprised of 70% new construction and 30% re-roofing and repairs. This employee would not be covered under sections 63 and 64 of the ESA and their employer would not be obligated to pay severance or provide notice to the employee upon the termination of their employment.

 

If you are an employee or an employer in the construction industry interested in knowing more about what your rights or obligations are under the ESA, contact Ascent Employment Law. We want to help!