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

Employment Standards Act

1 Section 1 (1) of the Employment Standards Act, R.S.B.C. 1996, c. 113, is amended in the definition of "determination" by striking out "76 (1.1) or (3)" and substituting "76 (2), (3) or (8)".

2 Section 19 (4) is amended by striking out "within one year".

3 Section 76 is repealed and the following substituted:

Review and investigation of complaints

76 (1) Subject to subsection (2), the director must accept a complaint made under section 74.

(2) The director must refuse to accept a complaint if the complaint is not made within the time period under section 74 (3), (4) or (5), as applicable.

(3) On accepting a complaint under subsection (1), the director must review the complaint and decide whether any of the following circumstances apply:

(a) this Act does not apply to the complaint;

(b) the complaint is frivolous, vexatious or trivial or is not made in good faith;

(c) a proceeding relating to the subject matter of the complaint has been commenced before a court, tribunal, arbitrator or mediator;

(d) a court, tribunal or arbitrator has made a decision or award relating to the subject matter of the complaint;

(e) the dispute that caused the complaint may be dealt with under section 3 (7);

(f) the complaint has been resolved

(i) by way of a settlement agreement made under section 78,

(ii) by way of payment to the complainant of unpaid wages claimed by the complainant, or

(iii) in any other manner that the director considers to be satisfactory.

(4) If the director decides that none of the circumstances under subsection (3) apply, the director must investigate the complaint.

(5) If the director decides that any of the circumstances under subsection (3) apply, the director may

(a) refuse to investigate the complaint, or

(b) investigate the complaint.

(6) If the director decides at any time that the complaint may relate to an employee other than the employee who made the complaint, the director may

(a) refuse to investigate the complaint or stop or postpone investigating the complaint, and

(b) conduct a broader investigation that addresses the subject matter of the complaint.

(7) If the director conducts but does not complete the broader investigation under subsection (6) (b), or if that broader investigation does not resolve the issues raised in the complaint, the director must, subject to subsection (8), investigate the complaint.

(8) The director may stop or postpone investigating a complaint at any time if the director is satisfied that

(a) this Act does not apply to the complaint,

(b) the complaint is frivolous, vexatious or trivial or is not made in good faith,

(c) there is not enough evidence to prove the complaint,

(d) despite the director's attempt to arrange for the complainant's participation in a review or investigation or to obtain information from the complainant, the complainant failed to participate in the review or investigation or to provide information,

(e) a proceeding relating to the subject matter of the complaint has been commenced before a court, tribunal, arbitrator or mediator,

(f) a court, tribunal or arbitrator has made a decision or award relating to the subject matter of the complaint,

(g) the dispute that caused the complaint may be dealt with under section 3 (7), or

(h) the complaint has been resolved

(i) by way of a settlement agreement made under section 78,

(ii) by way of payment to the complainant of unpaid wages claimed by the complainant, or

(iii) in any other manner that the director considers to be satisfactory.

4 The following section is added:

Complaint resolution process during investigation

76.1 (1) In this section, "party", in relation to a complaint made under section 74 (1), means the following:

(a) the complainant;

(b) the person against whom the complaint was made.

(2) If the director investigates a complaint, the director may

(a) require the parties to participate in a complaint resolution process conducted by the director as part of the investigation, and

(b) specify the manner in which the parties must participate in that process.

(3) The director may

(a) excuse a party from the requirement to participate in a complaint resolution process if that party gives a reason the director considers satisfactory, and

(b) continue to investigate the complaint after excusing a party under paragraph (a).

(4) If a party fails to participate in a complaint resolution process as required under subsection (2), the director may

(a) continue to investigate the complaint, or

(b) stop investigating the complaint and, subject to section 78.1, proceed to make a determination under section 79.

(5) Evidence, submissions and other information provided to the director by a party during a complaint resolution process

(a) may be considered by the director when making a determination under section 79, whether or not one or both of the parties participated in the complaint resolution process, and

(b) are part of the record referred to in section 112 (5).

5 Section 78 (1) (a) is amended by adding ", whether or not that assistance is provided as part of a complaint resolution process under section 76.1" after "under section 74".

6 Section 78.1 is repealed and the following substituted:

Report may be prepared and served

78.1 (1) The director may, before making a determination under section 79, prepare a written report for the purpose of providing to the persons referred to in subsection (2) of this section the opportunity to respond to the director before the determination is made.

(2) If the director prepares a report under subsection (1), the director must serve a copy of the report on

(a) the complainant,

(b) the person against whom the complaint was made, and

(c) any other person who the director considers should have the opportunity to provide a response.

(3) A person on whom a report is served under subsection (2) may, within a period of time specified by the director, provide to the director a written response to the report.

7 Section 78.2 is repealed.

8 Section 88 (5) is amended by striking out "section 113" and substituting "section 112 or 113".

9 Section 112 is amended

(a) in subsection (2) by renumbering paragraph (a) as paragraph (a.1) and by adding the following paragraph:

(a) deliver to the director the deposit amount specified in subsection (3.1), if applicable, ,

(b) in subsection (2) (a.1) by striking out "and" at the end of subparagraph (i.1) and by adding the following subparagraph:

(iii) if a deposit is delivered to the director under paragraph (a), written confirmation from the director respecting delivery of the deposit, and ,

(c) in subsection (2) (b) by striking out "paragraph (a) (i)" and substituting "paragraph (a.1) (i)",

(d) by adding the following subsection:

(3.1) If the determination in respect of which a person wishes to make an appeal includes a requirement that the person pay an amount of money to one or more employees, the person must deliver to the director a deposit equal to

(a) the total amount that the person is required to pay under the determination, or

(b) a smaller amount that the tribunal considers adequate in the circumstances. , and

(e) in subsection (4) (a) by striking out "subsection (2) (a) (i)" and substituting "subsection (2) (a.1) (i)".

10 Section 113 (2) is repealed and the following substituted:

(2) The tribunal may, if requested to do so under subsection (1), suspend a determination for the period and subject to the conditions it considers appropriate.

11 Section 114 is amended by adding the following subsection:

(2.1) Section 76.1 does not apply in respect of a matter referred back to the director for further investigation under subsection (2) (a) of this section.

12 Section 115 is amended by adding the following subsection:

(3) Section 76.1 applies in respect of a matter referred back to the director for further investigation under subsection (1) of this section.

13 Section 117 is amended

(a) in subsection (1) by striking out "Subject to subsection (2), the director" and substituting "The director", and

(b) in subsection (4) by striking out ", subject to subsection (3),".

14 Section 122 (1), (2) and (3) is amended by striking out "section 78.1 (1) (a)" and substituting "section 78.1 (1)".

15 Section 127 (2) (n.1) is amended by striking out "section 112 (2) (a) (ii)" and substituting "section 112 (2) (a.1) (ii)".

Temporary Foreign Worker Protection Act

16 Section 51 (4) of the Temporary Foreign Worker Protection Act, S.B.C. 2018, c. 45, is amended by striking out "section 69" and substituting "section 68 [appeal of director's determination] or 69".

17 Section 68 is amended

(a) in subsection (2) by renumbering paragraph (a) as paragraph (a.1) and by adding the following paragraph:

(a) deliver to the director the deposit amount specified in subsection (3.1), if applicable, ,

(b) in subsection (2) (a.1) by striking out "and" at the end of subparagraph (ii) and by adding the following subparagraph:

(iv) if a deposit is delivered to the director under paragraph (a), written confirmation from the director respecting delivery of the deposit, and ,

(c) in subsection (2) (b) by striking out "paragraph (a) (i)" and substituting "paragraph (a.1) (i)",

(d) by adding the following subsection:

(3.1) If the determination in respect of which a person wishes to make an appeal includes a requirement that the person pay an amount of money to another person, the person who wishes to make the appeal must deliver to the director a deposit equal to

(a) the total amount that the person is required to pay under the determination, or

(b) a smaller amount that the tribunal considers adequate in the circumstances. , and

(e) in subsection (4) (a) by striking out "subsection (2) (a) (i)" and substituting "subsection (2) (a.1) (i)".

18 Section 69 (2) is repealed and the following substituted:

(2) The tribunal may, if requested to do so under subsection (1), suspend a determination for the period and subject to the conditions it considers appropriate.

Commencement

19 This Act comes into force by regulation of the Lieutenant Governor in Council.

Explanatory Notes

CLAUSE 1: [Employment Standards Act, section 1] is consequential to amendments made by this Bill to section 76 of the Act.

CLAUSE 2: [Employment Standards Act, section 19] enables the director to transfer money to the administrator at any time.

CLAUSE 3: [Employment Standards Act, section 76] makes housekeeping amendments.

CLAUSE 4: [Employment Standards Act, section 76.1] provides for a complaint resolution process.

CLAUSE 5: [Employment Standards Act, section 78] is consequential to the addition by this Bill of section 76.1 to the Act.

CLAUSE 6: [Employment Standards Act, section 78.1] gives the director the discretion to prepare a written report respecting an investigation.

CLAUSE 7: [Employment Standards Act, section 78.2] is consequential to the addition by this Bill of section 76.1 to the Act.

CLAUSE 8: [Employment Standards Act, section 88] is consequential to amendments made by this Bill to section 112 of the Act.

CLAUSE 9: [Employment Standards Act, section 112] adds provisions respecting the deposit that must be paid in order to appeal a determination in specified circumstances.

CLAUSE 10: [Employment Standards Act, section 113] is consequential to amendments made by this Bill to section 112 of the Act.

CLAUSE 11: [Employment Standards Act, section 114] provides that the complaint resolution process under section 76.1 of the Act does not apply in respect of a matter referred back to the director before consideration of an appeal.

CLAUSE 12: [Employment Standards Act, section 115] provides that the complaint resolution process under section 76.1 of the Act applies in respect of a matter referred back to the director after consideration of whether the grounds for appeal have been met.

CLAUSE 13: [Employment Standards Act, section 117] makes a housekeeping amendment.

CLAUSE 14: [Employment Standards Act, section 122] is consequential to amendments made by this Bill to section 78.1 of the Act.

CLAUSE 15: [Employment Standards Act, section 127] is consequential to amendments made by this Bill to section 112 of the Act.

CLAUSE 16: [Temporary Foreign Worker Protection Act, section 51] is consequential to amendments made by this Bill to section 68 of the Act.

CLAUSE 17: [Temporary Foreign Worker Protection Act, section 68] adds provisions respecting the deposit that must be paid in order to appeal a determination in specified circumstances.

CLAUSE 18: [Temporary Foreign Worker Protection Act, section 69] is consequential to amendments made by this Bill to section 68 of the Act.