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The Retail Businesses Holiday Closing Amendment, Employment Standards Amendment and Payment of Wages Amendment Act

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S.M. 1993, c. 22

The Retail Businesses Holiday Closing Amendment, Employment Standards Amendment and Payment of Wages Amendment Act

(Assented to July 27, 1993)

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

PART 1

HOLIDAY SHOPPING FROM APRIL 13 TO SEPTEMBER 30, l993

DIVISION 1

THE RETAIL BUSINESSES HOLIDAY CLOSING ACT

C.C.S.M. c. R120 amended

1           The Retail Businesses Holiday Closing Act is amended by this Division.

2           Subsection 4(1) is repealed and the following is substituted:

Exemptions

4(1)        The following are exempt from sections 2 and 3:

(a) goods or services sold or offered for sale by retail in the form of or in connection with living accommodation or prepared meals where the sale or offering for sale of those goods or services is the principal business of the seller or offeror;

(b) the retail sale of liquor under the authority of a licence or permit issued under The Liquor Control Act;

(c) a retail business that is governed or regulated by a special Act of the Legislature or any regulations made thereunder;

(d) a retail business establishment where the number of persons, including the owner, employed for the sale of goods or services does not ordinarily exceed four persons at any one time;

(e) a pharmacy where the principal business carried on is the dispensing of drugs upon prescription and the sale of goods of a pharmaceutical or therapeutic nature or for hygienic or cosmetic purposes;

(f) a retail business establishment where gasoline, motor oil and related goods or services for use in the operation of a motor vehicle are the only goods or services sold or offered for sale;

(g) a retail business establishment where nursery stock, flowers, garden supplies and accessories are the only goods sold or offered for sale;

(h) a retail business establishment where fresh fruit and vegetables are the only goods sold or offered for sale;

(i) the operation of laundromats and other coin-operated services incidental thereto;

(j) the rental, servicing or repair of motor vehicles or boats;

(k) the admission of the public to premises for educational, recreational or amusement purposes or in respect of the sale or offering for sale of goods or services incidental thereto; and

(l) the operation of tourism and recreational facilities including summer and winter resorts.

3           The following is added after section 4:

Application

4.1(1)      This section applies in respect of retail business establishments other than those that are exempt by reason of subsection 4(1).

Exemptions restricted by time and holidays

4.1(2)      A retail business establishment where more than four persons, including the owner, are ordinarily employed for the sale of goods or services is exempt from sections 2 and 3 if

(a) that retail business establishment does not admit members of the public therein or sell or offer for sale any goods or services before 12 noon or after 6:00 p.m. on the holiday; and

(b) the holiday is other than Canada Day or Labour Day.

Commercial tenants

4.2         A provision of a lease or other agreement that would have the effect of requiring a retail business establishment to remain open on a holiday referred to in clause 4.1(2)(b) is of no effect in respect of that holiday even if the lease or other agreement was made before the coming into force of this section.

4           Clause 9(b) is amended by striking out "clause 4(1)(d) and".

DIVISION 2

THE EMPLOYMENT STANDARDS ACT

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

5           The Employment Standards Act is amended by this Division.

6           The following is added after section 41:

RIGHT TO REFUSE WORK IN CERTAIN RETAIL BUSINESS ESTABLISHMENTS ON HOLIDAYS

Definitions

41.1(1)     In this section,

"holiday" means Sunday; (« jour férié »)

"retail business establishment" means a retail business establishment as defined in The Retail Businesses Holiday Closing Act. (« établissement de commerce de détail »)

Right to refuse work on holidays

41.1(2)     An employee in a retail business establishment

(a) where the number of persons employed for the sale of goods or services at any one time ordinarily exceeds four persons, including the owner;

(b) in which under The Retail Businesses Holiday Closing Act members of the public are permitted to be admitted or any goods or services are permitted to be sold or offered for sale between 12 noon and 6:00 p.m. on a holiday; and

(c) that is exempt from sections 2 and 3 of The Retail Businesses Holiday Closing Act by reason only of subsection 4.1(2) of that Act;

may refuse to work on a holiday if the employee gives notice to the employer at least 14 days before that holiday.

Prohibition against discharge for refusing work

41.2        No employer or person acting on behalf of an employer shall discharge, or threaten to discharge, an employee

(a) because the employee has refused, or attempted to refuse, to work on a holiday, if the employee has complied with section 41.1; or

(b) because the employee seeks to enforce his or her rights under section 41.1.

DIVISION 3

THE PAYMENT OF WAGES ACT

C.C.S.M. c. P31 amended

7           The Payment of Wages Act is amended by this Division.

8           Section 21 is amended

(a) by adding the following after subsection 21(1):

Prohibition against discharge for refusing work

21(1.1)     No employer or person acting on behalf of an employer shall discharge, or threaten to discharge, an employee because the employee has refused or attempted to refuse to work on a holiday as defined in subsection 41.1(1) of The Employment Standards Act if he or she is permitted to do so under section 41.1 of that Act.

(b) in subsection (2), by adding "or (1.1)" after "subsection (1)".

PART 2

HOLIDAY SHOPPING AFTER SEPTEMBER 30, 1993

DIVISION 1

THE RETAIL BUSINESSES HOLIDAY CLOSING ACT

C.C.S.M. c. R120 amended

9           The Retail Businesses Holiday Closing Act is amended by this Division.

10          Section 1 is amended

(a) by adding the following definitions in alphabetical order:

"council" means

(a) in the case of a municipality incorporated by or under an Act of the Legislature, the council of that municipality,

(b) in the case of a local government district, the resident administrator of that local government district,

(c) in the case of an incorporated community established under The Northern Affairs Act, the incorporated community council of that incorporated community, and

(d) in the case of Northern Manitoba, other than an incorporated community, the Minister of Northern Affairs; (« conseil »)

"Northern Manitoba" means Northern Manitoba as defined in The Northern Affairs Act; (« Nord »)

(b) by repealing the definition "municipality" and substituting the following:

"municipality" means

(a) a municipality incorporated by or under an Act of the Legislature,

(b) a local government district,

(c) an incorporated community established under The Northern Affairs Act, or

(d) the Minister of Northern Affairs exercising the powers, rights and privileges that a municipality has within its boundaries under subsection 5(1) of The Northern Affairs Act, in respect of all of Northern Manitoba, other than an incorporated community, or any part of Northern Manitoba, other than an incorporated community, that is specified by the Minister; (« municipalité »)

11          Section 4 is repealed and the following is substituted:

Exemptions

4           The following are exempt from sections 2 and 3:

(a) goods or services sold or offered for sale by retail in the form of or in connection with living accommodation or prepared meals where the sale or offering for sale of those goods or services is the principal business of the seller or offeror;

(b) the retail sale of liquor under the authority of a licence or permit issued under The Liquor Control Act;

(c) a retail business that is governed or regulated by a special Act of the Legislature or any regulations made thereunder;

(d) subject to clause 4.1(6)(a), a retail business establishment where the number of persons, including the owner, employed for the sale of goods or services does not exceed four persons at any one time;

(e) a pharmacy where the principal business carried on is the dispensing of drugs upon prescription and the sale of goods of a pharmaceutical or therapeutic nature or for hygienic or cosmetic purposes;

(f) a retail business establishment where gasoline, motor oil and related goods or services for use in the operation of a motor vehicle are the only goods or services sold or offered for sale;

(g) a retail business establishment where nursery stock, flowers, garden supplies and accessories are the only goods sold or offered for sale;

(h) a retail business establishment where fresh fruit and vegetables are the only goods sold or offered for sale;

(i) the operation of laundromats and other coin-operated services incidental thereto;

(j) the rental, servicing or repair of motor vehicles or boats;

(k) the admission of the public to premises for educational, recreational or amusement purposes or in respect of the sale or offering for sale of goods or services incidental thereto;

(l) the operation of tourism and recreational facilities including summer and winter resorts.

12          The following is added after section 4:

Definition

4.1(1)      In this section, "territory outside a municipality" means territory other than the territory of a municipality or that part of Northern Manitoba in respect of which the Minister of Northern Affairs has the powers, rights and privileges of a municipality.

Exemption in force by by-law or regulation

4.1(2)      When a by-law of a municipality under subsection (3) or a regulation under subsection (5) made in respect of a territory outside a municipality so provides, the following are exempt from sections 2 and 3:

(a) every retail business establishment in the municipality or territory where the number of persons, including the owner, employed for the sale of goods or services does not ordinarily exceed four persons at any one time; and

(b) every retail business establishment in the municipality or territory where more than four persons, including the owner, are ordinarily employed for the sale of goods or services at any one time but only if

(i) the holiday is other than New Year's Day, Good Friday, Easter Sunday, Canada Day, Labour Day or Christmas Day, and

(ii) that retail business establishment does not admit members of the public therein or sell or offer for sale any goods or services before 12 noon or after 6:00 p.m. on the holiday.

By-law

4.1(3)      The council of a municipality may adopt a by-law providing that the exemptions referred to in subsection (2) are in force in the municipality.

Contents of by-law

4.1(4)      A by-law under subsection (3) may provide that the exemptions referred to in subsection (2) are in force in a specified period or periods only.

Regulation regarding territory

4.1(5)      Where the Lieutenant Governor in Council is satisfied that a majority of the inhabitants of a territory outside a municipality so desire, the Lieutenant Governor in Council may by regulation, in respect of the territory, exercise the same powers that a municipality may by by-law exercise under subsection (3).

Effect of by-law or regulation

4.1(6)      When pursuant to a by-law under subsection (3) or a regulation under subsection (5) the exemptions referred to in subsection (2) are in force in a municipality or a territory outside a municipality,

(a) clause 4(d) is not in force in that municipality or territory;

(b) a provision of a lease or other agreement that would have the effect of requiring a retail business establishment referred to in clause (2)(b) to remain open on a holiday referred to in subclause (2)(b)(i) when a by-law under subsection (3) or a regulation under subsection (5) is in force is of no effect in respect of that holiday even if the lease or other agreement was made before the coming into force of the by-law; and

(c) in the case of a municipality, a by-law under section 6 of The Shops Regulation Act, to the extent that it requires a retail business establishment referred to in clause (2)(b) to close and remain closed on a holiday referred to in subclause (2)(b)(i), is not in force in that municipality.

13          Clause 9(b) is repealed.

DIVISION 2

THE EMPLOYMENT STANDARDS ACT

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

14          The Employment Standards Act is amended by this Division.

15          The following is added after section 41:

RIGHT TO REFUSE WORK ON SUNDAY

Definitions

41.1(1)     In this section, "retail business establishment" and "territory outside a municipality" have the same meaning as they have in The Retail Businesses Holiday Closing Act.

Right to refuse to work on Sunday

41.1(2)      An employee in a retail business establishment

(a) where the number of persons employed for the sale of goods or services at any one time ordinarily exceeds four persons, including the owner;

(b) to which under The Retail Businesses Holiday Closing Act members of the public are permitted to be admitted or in which any goods or services are permitted to be sold or offered for sale between 12 noon and 6:00 p.m. on a Sunday;

(c) that is located in a municipality or a territory outside a municipality in which the exemptions in subsection 4.1(2) of that Act are in force; and

(d) that is exempt from sections 2 and 3 of that Act by reason only of the fact that it is exempt under clause 4.1(2)(b) of that Act;

may refuse to work on a Sunday during which the retail business establishment is exempt if the employee gives notice to the employer at least 14 days before that Sunday.

Prohibition against discharge for refusing work

41.2        No employer or person acting on behalf of an employer shall discharge, or threaten to discharge, an employee

(a) because the employee has refused, or attempted to refuse, to work on a Sunday, if the employee was permitted to do so under subsection 41.1(2); or

(b) because the employee seeks to enforce his or her rights under subsection 41.1(2).

DIVISION 3

THE PAYMENT OF WAGES ACT

C.C.S.M. c. P31 amended

16          The Payment of Wages Act is amended by this Division.

17          Section 21 is amended

(a) by adding the following after subsection 21(1):

Prohibition against discharge for refusing work

21(1.1)     No employer or person acting on behalf of an employer shall discharge, or threaten to discharge, an employee because the employee has refused or attempted to refuse to work on a Sunday if he or she is permitted to do so under subsection 41.1(2) of The Employment Standards Act.

(b) in subsection (2), by adding "or (1.1)" after "subsection (1)".

PART 3

COMING INTO FORCE

Coming into force and repeal of Part 1

18(1)       Part 1 of this Act comes into force on April 13, l993 and is repealed on September 30, l993.

Revival of former provisions

18(2)       Subsection 4(1) and clause 9(b) of The Retail Businesses Holiday Closing Act and section 21 of The Payment of Wages Act as they stood on April 12, 1993 are declared to be in force on October 1, l993 as fully and effectually as if Divisions 1 and 3 of Part 1 of this Act had not been enacted.

Coming into force: Part 2

19          Part 2 of this Act comes into force at 12:01 a.m. on October 1, l993.

Coming into force: Part 3

20          Part 3 of this Act comes into force on the day it receives royal assent.