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3rd Session, 41st Legislature

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Bill 20

THE EMPLOYMENT STANDARDS CODE AMENDMENT ACT (2)


  Bilingual version (PDF) Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. E110 amended

1            The Employment Standards Code is amended by this Act.

2           The following is added as section 11.1:

Averaging by agreement without director's approval

11.1(1)     An employer and an employee or a group of employees not covered by a collective agreement may enter into an agreement determining an employee's standard hours of work for a specified period if, under the agreement,

(a) the employee's standard hours of work per day do not exceed 12 hours;

(b) the employee's standard hours of work per week do not exceed 60 hours; and

(c) the employee's standard hours of work for the specified period are as determined by the following formula:

Standard hours = W × H

In this formula,

W   is the number of weeks in the specified period;

H   is 40 or, if the average number of regular hours of work per week during the specified period as authorized by the agreement is less than 40, that lesser number.

Effect of averaging

11.1(2)     When an agreement under subsection (1) applies in determining an employee's standard hours of work for a specified period, section 10 does not apply to the employee.

Requirements for agreement

11.1(3)     An agreement under this section must be in writing and must

(a) be made at least one week before the start date of the agreement;

(b) specify the employee or group of employees to whom the agreement applies;

(c) be signed by the employer and by the employee or, in the case of a group of employees, by at least 75% of the employees affected by the agreement;

(d) specify the start date and end date of the agreement, which may be no more than three years in duration;

(e) specify the period over which the hours will be worked, which may not exceed 12 weeks;

(f) specify the work schedule which reflects the daily and weekly hours; and

(g) be posted at the employer's premises where it can be seen by the affected employees.

Employees bound by agreement

11.1(4)     An agreement under this section applies to every employee in a group of employees to whom the agreement applies, whether or not the employee signed the agreement or was employed by the employer when the agreement was entered into.

Agreement may be renegotiated

11.1(5)     The employer and the employee or employees may renegotiate an agreement under this section at any time.

Director may terminate

11.1(6)     The director may, by written notice to the employer at any time, terminate an agreement under this section or prohibit the employer from entering into such an agreement if the director is satisfied

(a) that the agreement adversely affects or will adversely affect the safety, health or welfare of the public or of the employees to whom the agreement applies; or

(b) that there is a relevant history of non-compliance by the employer with this Code.

When section does not apply

11.1(7)     An agreement under this section may not apply to employees who regularly work less than 30 hours per week.

3           The section heading for subsection 12(1) is replaced with "Averaging that requires director's approval".

4(1)        Subsection 58(1) is amended in the part before clause (a) by striking out "37 continuous weeks" and substituting "63 continuous weeks".

4(2)        Subsection 58(2) is amended by striking out "37 weeks" and substituting "63 weeks".

4(3)        Subsection 58(3) is amended by striking out "the first anniversary of" and substituting "18 months after".

5(1)        Clauses 59.1(1)(a) and (b) are amended by striking out "37 weeks" and substituting "63 weeks".

5(2)        The following is added after subsection 59.1(1):

Transitional

59.1(1.1)   Despite subsection (1), if the child for whom the employee takes parental leave was born or adopted or came into the employee's care and custody before the day this section came into force, the employee's parental leave ends

(a) 37 weeks after it began; or

(b) if subsection 58(2) applies, 37 weeks after it began less the number of days provided for in that subsection.

6           The centred heading before section 59.8 is replaced with the following:

LEAVE RELATED TO CRITICAL ILLNESS

7(1)        Subsection 59.8(1) is amended

(a) by repealing the definition "common-law partner";

(b) in the definition "physician", by adding "or adult" after "child"; and

(c) by adding the following definitions:

"critically ill adult" has the same meaning as in the regulations made under the Employment Insurance Act (Canada). (« adulte gravement malade »)

"family member" has the same meaning as in section 59.2. (« membre de la famille »)

7(2)        Subsections 59.8(2) to (4) are replaced with the following:

Entitlement to leave re child

59.8(2)     An employee who has been employed by the same employer for at least 30 days is entitled to an unpaid leave of absence from employment of up to 37 weeks to provide care or support to a critically ill child who is a family member of the employee.

Entitlement to leave re adult

59.8(3)     An employee who has been employed by the same employer for at least 90 days is entitled to an unpaid leave of absence from employment of up to 17 weeks to provide care or support to a critically ill adult who is a family member of the employee.

Physician's certificate

59.8(4)     For an employee to be eligible for leave, a physician must issue a certificate

(a) stating that the child or adult is a critically ill child or a critically ill adult and requires the care or support of the employee; and

(b) setting out the period during which the child or adult requires that care or support.

7(3)        Subsection 59.8(7) is replaced with the following:

Ending leave early

59.8(7)     Unless the employee and employer agree otherwise, an employee may end a leave earlier than the expiry of 37 weeks in the case of a critically ill child, and 17 weeks in the case of a critically ill adult, by giving the employer written notice at least one pay period before the employee wishes to end the leave.

Leave taken in one or more periods

59.8(8)     A leave may be taken in one or more periods, but no period may be less than one week's duration.

When leave must end

59.8(9)     A leave must end no later than 52 weeks after the day the first period of leave began.

Additional leaves

59.8(10)    If a child or adult in respect of whom an employee has taken a leave under this section remains critically ill after the 52-week period described in subsection (9) expires, the employee is entitled to take another leave and the requirements of this section apply to the new leave.

8           Division 14 of Part 2 is replaced with the following:

DIVISION 14

EMPLOYMENT OF YOUNG PERSONS

Definitions

83          The following definitions apply in this Division.

"parent" of a child includes a guardian of the child or other person who has care, custody or control of the child. (« parent »)

"young person" means a person 13 years of age or older but less than 18 years old. (« jeune »)

CHILDREN UNDER 13

No employment of child under 13

84(1)       No person shall employ a child under the age of 13 years.

Parent's obligation

84(2)       No parent shall allow a child under the age of 13 years to be employed.

YOUNG PERSONS UNDER 16

Work readiness certificate

84.1        No person shall employ a young person under the age of 16 years unless the young person provides the employer with a work readiness certificate that

(a) certifies that the young person has completed a work readiness course approved by the director; and

(b) includes a signed consent of the young person's parent to the employment.

Restricted hours of employment

84.2        No person shall employ a young person under the age of 16 years

(a) between 11:00 p.m. and 6:00 a.m.; or

(b) for more than 20 hours during a week of school.

YOUNG PERSONS UNDER 18

No working alone at night

84.3(1)     Subject to the regulations, no employer shall require or allow a young person under the age of 18 years to work alone between 11:00 p.m. and 6:00 a.m.

No working in prescribed industry or occupation

84.3(2)     Subject to the regulations, no employer shall require or allow a young person under the age of 18 years to work in a prescribed industry or occupation.

9           Section 92 is amended

(a) by renumbering it as subsection 92(1);

(b) by striking out "A complaint" and substituting "Subject to subsection (2), a complaint"; and

(c) by adding the following as subsection 92(2):

No complaint by employee covered by collective agreement

92(2)       An employee who is covered by a collective agreement may not file a complaint under this Code.

10          Section 93 is amended by striking out "or" at the end of clause (a), adding "or" at the end of clause (b) and adding the following after clause (b):

(c) the director is satisfied that the complaint is frivolous or vexatious.

11          Subsection 135(1) is amended

(a) by adding the following after clause (d):

(d.0.1) copies of agreements referred to in section 11.1;

(b) by adding the following after clause (l.1):

(l.2) copies of work readiness certificates required by section 84.1 for employees under the age of 16;

12          Clause 139(1)(i) is replaced with the following:

(i) contravenes section 84, 84.1, 84.2 or 84.3 (employment of young persons);

13          Clause 144(1)(s) is replaced with the following:

(s) respecting the employment of children and young persons, including prohibiting, restricting or allowing their employment by industry, occupation or type of work, and allowing the director to approve, with or without conditions, exceptions to those prohibitions or restrictions;

(s.1) for the purpose of section 84.1, respecting work readiness courses and work readiness certificates for young persons under the age of 16 years;

Transitional: employment of children under 13

14(1)       If, on the day section 8 comes into force, a child under the age of 13 years is employed by an employer under the authority of a permit issued by the director under the Code,

(a) the child may continue to be employed by that employer despite section 84 of the Code, as enacted by section 8 of this Act; and

(b) the child need not complete a work readiness course or provide a work readiness certificate unless the child becomes employed by another employer after attaining the age of 13 years.

Employment of young persons under 16

14(2)       If, on the day section 8 comes into force, a young person under the age of 16 years is employed by an employer under the authority of a permit issued by the director under the Code, the young person need not complete a work readiness course or provide a work readiness certificate unless they become employed by another employer.

Coming into force — proclamation

15(1)       Subject to subsection (2), this Act comes into force on a day to be fixed by proclamation.

Coming into force — royal assent

15(2)       Sections 1 and 4 to 7 come into force on royal assent.

Explanatory Note

This Bill makes several changes to The Employment Standards Code.

Leaves of absence

Parental leave is extended from 37 weeks to 63 weeks, and a new 17-week leave is established to permit employees to care for an adult family member who is critically ill. These amendments allow Manitobans to take advantage of recent changes to employment insurance benefits available under federal legislation.

Employment of young people

The minimum age for employment is raised from 12 to 13 years of age.

The requirement that an employer obtain a permit from the director before employing someone under the age of 16 is eliminated. Instead, an employer must ensure that a young person under the age of 16 has a work readiness certificate certifying that they have completed a work readiness course approved by the director.

Agreement re averaging standard hours of work

New provisions allow an employer and an employee (or group of employees) to enter into an agreement specifying different standard hours of work than the default standard hours specified in the Code, if certain conditions are met.

Complaints to the director

Employees covered by a collective agreement may not make a complaint to the director.

The director is authorized to refuse to accept frivolous or vexatious complaints.