CASUAL LEGAL: Saving Employers Time and Money – Simplified Employment Standards Variance Applications

Saving Employers Time and Money – Simplified Employment Standards Variance Applications

By Andrew Skeith

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

As employers, municipalities are unique in that they have employees in a wide variety of positions and roles, from fire fighters to administrative staff. The relatively rigid structure of the Employment Standards Code requirements often do not lend themselves well to the realities of some of these positions.

To deal with such irregularities, section 74 of the Code allows employers to apply to the Director of Employment Standards for a variance from certain provisions of the Code or regulations, while section 74.1 allows employers to apply to the Minister for other types of variances.

The Director may grant the following types of variances:

• Extending the maximum hours of work;
• Extending the maximum period of consecutive work days;
• Extending an averaging period;
• Reducing the minimum hours of pay required for time worked;

In the past, applications for variances were relatively rare, as the Director and Minister were required to consider certain requirements that were set out in the regulations prior to granting the request. These considerations included:

• The employer’s historical compliance with the Code;
• The reason for the request;
• Employee support for the request;
• The potential effect of the variance on the safety, health, or welfare of the public or affected employees.

Bill 32, the Restoring Balance in Alberta’s Workplaces Act, 2020, removed the requirement for the Director and Minister to consider those requirements, with the intent of simplifying and streamlining the process of requesting variances from the Code.

Requesting a variance is now a simple process available through an online government website portal.