The Employment Standards Branch of the British Columbia Ministry of Labour is the government department that is responsible for the enforcement of the Employment Standards Act (the “ESA”) in British Columbia. It is therefore responsible for enforcing s. 10 of the ESA, which provides that a person must not request, charge or receive, directly or indirectly, from a person seeking employment a payment for employing or obtaining employment for the person seeking employment, or providing information about employers seeking employees. Immigration practitioners, who are frequently asked to assist people in finding jobs, must ensure that they do not contravene s. 10 of the ESA.
The Latest Word
I was recently fortunate to have had the opportunity to attend an excellent Continuing Legal Education Conference hosted by the Canadian Bar Association. There, a representative from the Employment Standards Branch gave a presentation and made several interesting observations on s. 10 of the ESA.
She confirmed that employment agencies are required to be licensed, and that any practitioner can look online to ensure that an employment agency that the employer is using is licensed.
She confirmed that charging a fee to an employee to find a job is not allowed, and she also confirmed that deducing wages from the employee for the purpose of paying such a fee to a third party is also not allowed.
She acknowledged that s. 10 of the ESA is extremely difficult to enforce when such fees are paid offshore.
Finally, and interestingly, she noted that the government is taking the position that the wage rate that is provided for in a Labour Market Opinion can be enforced. Indeed, the government takes the position that a Labour Market Opinion forms part of the contract.
An Interesting Case on the Matter
On October 19, 2010, the British Columbia Provincial Court released an interesting decision (2010 BCPC 384) on the issue of s. 10 of the ESA. There, the Court found that the following provisions in the retainer of an immigration consultant did not breach s. 10 of the ESA:
The Company agrees to render the Client consulting services for the purpose of obtaining a labour contract, work permit and coming to Canada for work under the Live-in-Caregiver Program of Canadian Government (“Program”), and the Client agrees to pay for the services rendered in the amount and on terms provided by this Contract.
The Court found that because obtaining a labour contract was required to obtain a work permit, that the creation of such a labour contract was necessarily incidental to the immigration consultant’s services of helping the client obtain a work permit.
This case is a useful one for immigration consultants, and one that will likely be cited in future ESA s. 10 decisions.