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Power to Grant Variance - Act Part 9, Section 73

Last updated on November 20, 2019

Contents:

Summary
Text of Legislation
Policy Interpretation
Related Information

Summary

This section explains the director’s power to grant a variance and under what conditions it may be granted. 

Text of Legislation

73. (1) The director may vary a time period or requirement specified in an application under section 72 if the director is satisfied that

(a) a majority of the employees who will be affected by the variance are aware of its effect and approve of the application, and

(b) the variance is not inconsistent with the purposes of this Act set out in section 2.

(1.1) The application and operation of a variance under this Part must not be interpreted as a waiver described in section 4.

(2) In addition, if the application is for a variance of a time period or a requirement of section 64 the director must be satisfied that the variation will facilitate

(a) the preservation of the employer's operations,

(b) an orderly reduction or closure of the employer's operations, or

(c) the short term employment of employees for special projects.

(3) The director may

(a) specify that a variance applies only to one or more of the employer's employees,

(b) specify an expiry date for a variance, and

(c) attach any conditions to a variance.

(4) On being served with a determination on a variance application, the employer must display a copy of the determination in each workplace, in locations where the determination can be read by any affected employees.

Policy Interpretation

The Director enforces the minimum standards of employment in the workplaces of employees covered by the Act. Although the Act allows employers and employees to make an application for a variance of the provisions set out in s.2, the authority to grant a variance is exclusively that of the Director.

For information on how to apply for a variance, refer to s.30 of the Employment Standards Regulation.

Employers who operate without a valid variance in place may be subject to an audit by the Director.

Subsection 1(a)

The director must be satisfied that a majority of employees support the application for a variance. Section 30 of the Employment Standards Regulation requires that the application include the signatures of a majority of the employees who will be affected.

Affected employees are only those who will work under the proposed variance, whether they are full-time, part-time or temporary employees.

Once employees become part of the group working under a variance, they will be governed by that variance.

The director will interview the employees privately (or a sample of employees) to ensure that they:

  • understand the details of the variance requested
  • genuinely support the application for a variance

Subsection 1(b)

The Director must ensure that a variance is not inconsistent with the purposes of the Act. Section 2 of the Act ensures that employees receive at least basic standards of compensation and conditions of employment.

Any variance granted must not take away from the minimum standards of the Act. It must be determined that there is no loss to employees, or that there are advantages or benefits gained which balance any losses. In some cases, the terms of a variance may not strictly conform to requirements of individual provisions in the Act; however, benefits may be gained in another area, resulting in the alteration being preferred by the affected employees and the employer.

Subsection (1.1)

Where the Director exercises the authority under this Part to grant a variance its application and operation is not considered a waiver as described in s.4 of the Act.

Subsection (2)

In some cases, employees may be impacted by layoff due to unforeseen circumstances or as a result of business alterations, such as a major renovation. In the case of “temporary layoff” as defined in section 1 of the Act, or in the event of a group termination under s.64, it may be beneficial to the employer and affected employee(s), as the case may be, to vary the period of time that will be in effect before the layoff becomes a “termination” for purposes of the Act.

A variance to other requirements of s.64 may also be of benefit to employees, given special circumstances. A variance under this subsection may be granted where it can be shown that the variance would:

  • allow an employer to remain in operation; or return to operation
  • allow for an orderly reduction or closure of operations
  • provide short term employment for special projects as an alternative to layoff or termination of employment

Subsection (3)

In some cases, one or more employees may have specific needs or circumstances where a variance under the Act is beneficial to both the employer and the employee. Where it can be shown that although the terms of a variance may not strictly conform to requirements of individual provisions in the Act but a benefit is gained in another area, a variance may be granted.

Initial variance applications, if approved, will be granted for a period of up to 2 years and up to 5 years on renewal. Where a variance is granted, if it is found that the terms of the variance are not being complied with, the Director may cancel the variance.

Employers may cancel the variance before its specified expiry date if the cancellation does not have a negative impact on the employees. If an employer wishes to cancel a variance, the employees and the Director must be notified. Where an employee, or affected employees, as the case may be, applies to have the variance cancelled, the employer may be required to confirm continued majority support or the Director may test for majority support.

The Director may establish any condition that is considered appropriate when granting a variance. If an employer is not in compliance with any condition, the Director may cancel the variance at any time.

Example

Employees working in a remote location that requires travel and relocation while working have made a joint application with their employer to vary the overtime provisions in s.40. in order to gain the benefit of an extended period of days off in a row. The employees will be working a 16-day shift cycle consisting of 8 10-hour days worked, followed by 8 days off.

The Director determines that the variance request is not inconsistent with the purposes of the Act and a variance is granted with the following condition:

An employee working on a regularly scheduled day off during the 16 day shift cycle must be paid at 1 1/2 times the employee's regular rate of pay for all time worked on the first scheduled day off and 2 times the employee's regular rate of pay for all time worked on any subsequent scheduled days off during the 16 day shift cycle.

Subsection (4)

An employer must display a copy of the Variance determination in the workplace at a location commonly viewed by employees. This may include an area where shift schedules are posted, in an employee’s lunch-room, or on a company information board. The intent is that all affected employees are aware of the variance provisions and its effect.

Related Information

Related sections of the Act or Regulation

ESA

ESR