Interpretation Guidelines Manual
British Columbia Employment Standards Act and Regulations
Employment Standards Act Part 10 - Complaints, Investigations and Determinations
| ESA Section 85 - Entry and inspection powers |
Contents:
Summary
Text of Legislation
Policy Interpretation
Related Information
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Summary
This section outlines the director’s powers to ensure compliance
with the Employment Standards Act.
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Text of Legislation
85. (1) For the purposes of ensuring compliance
with this Act and the regulations, the director may do one or more
of the following:
(a) enter during regular working hours any place, including any
means of conveyance or transport, where
(i) work is or has been done or started by employees,
(ii) an employer carries on business or stores assets relating to
that business,
(iii) a record required for the purposes of this Act is kept, or
(iv) anything to which this Act applies is taking place or has taken
place;
(b) inspect, and question a person about, any work, material, appliance,
machinery, equipment or other thing in the place;
(c) inspect any records that may be relevant to an investigation
under this Part;
(d) on giving a receipt for a record examined under paragraph (c),
remove the record to make copies or extracts;
(e) require a person to disclose, either orally or in writing, a
matter required under this Act and require that the disclosure be
under oath or affirmation;
(f) require a person to produce, or to deliver to a place specified
by the director, any records for inspection under paragraph (c).
(2) Despite subsection (1), the director may enter a place occupied
as a private residence only with the consent of the occupant or
under the authority of a warrant issued under section 120.
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Policy Interpretation
The director has extensive powers to investigate complaints.
The director has the authority to question any person who may have
information relating to a complaint, including, but not limited
to, the employer and its employees, consultants, accountants, bookkeepers,
contractors, clients, or suppliers of goods or services.
Subsection (1)
To ensure compliance with the Act, the director has the authority
to :
- Inspect Records
Employers must ensure that proper payroll records are available for inspection
by the director. An employer must cooperate with the director during
an investigation. (Refer to Act s.28. Payroll records and ss.6 and 18
of the Employment Standards Regulation).
The ability to inspect records includes entering the offices of bookkeepers
and accountants, and inspecting any documents they may be keeping for
the employer.
The director has the authority to also inspect accounts payable
records of a customer or client of the employer, or any other documents
relevant to the complaint, or to the enforcement of a determination.
Under s.85(1)(c), the director may require the production and delivery
of “any record”. This distinction is of importance, particularly
in cases when a “Demand for Records” is issued requiring the
production of records where there is a dispute whether the complainant
is an “employee” vs. “independent contractor” for
purposes of the Act.
- Remove Documents
The director has the authority to take documents or require them to
be delivered at a particular place and time. A receipt will be issued
for such documents.
- Require a statutory declaration
The director may require that information be provided in the form of
a statutory declaration (an affidavit sworn in front of a commissioner
of oaths).
Subsection (2)
The director can only enter a private residence with the permission
of the occupant, or with a warrant. The need to access a residence
may occur when an employer operates out of their private residence,
or when business records are kept at a private residence. This
situation may also arise in the case of a domestic employee. (Refer
to Part 14, Section 120 of the Act, Warrant to carry out
inspection powers).
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Related Information
Employment Standards Tribunal Decisions
HOC Hyperbaric Care Centre Inc., BC EST #D550/99
Maan Farms Ltd., BC EST #D038/10
Related sections of the Act or Regulation
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