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The Employment Standards Code and Consequential Amendments

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S.M. 1998, c. 29

THE EMPLOYMENT STANDARDS CODE AND CONSEQUENTIAL AMENDMENTS


Table of Contents

(Assented to June 29, 1998)

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

PART 1

DEFINITIONS, APPLICATION AND OPERATION OF THIS CODE

Definitions

1(1)      In this Code,

"agreement" includes an oral agreement and a collective agreement; (« accord »)

"annual vacation" means a vacation to which an employee is entitled under section 34; (« congé annuel »)

"bargaining agent" means a bargaining agent as defined in The Labour Relations Act; (« agent négociateur »)

"board" means

(a) in Division 1 (minimum wage) of Part 2, a minimum wage board established under section 7, and

(b) in all other provisions of this Code, The Manitoba Labour Board continued under The Labour Relations Act; (« Commission »)

"business" includes any kind of industry, calling, trade, profession, work, occupation, operation, activity, undertaking or service carried out by any person, whether or not for profit, and includes a part of a business, but does not include a business that is exempted by regulation; (« entreprise »)

"collective agreement" means a collective agreement as defined in The Labour Relations Act; (« convention collective »)

"construction" means construction as defined in The Construction Industry Wages Act; (« construction »)

"court" means the Court of Queen's Bench; (« tribunal »)

"department" means The Department of Labour established under The Department of Labour Act; (« ministère »)

"director" means the individual appointed as the Director of Employment Standards under subsection 115(1); (« directeur »)

"employee" means an individual who is employed by an employer to do work, and includes a former employee but does not include a director of a corporation in relation to that corporation; (« employé »)

"employer" means a person that employs an employee in any employment or business, and includes

(a) a person that has control or direction of, or is directly or indirectly responsible for, the employment of an employee or the payment of wages to an employee,

(b) a former employer,

(c) a receiver of the business of an employer, and

(d) two or more employers declared to be a single employer under section 134; (« employeur »)

"employment" means the engagement of an employee by an employer for the performance of work by the employee under an agreement in which the employee agrees to perform work for the employer for consideration that consists of or includes wages paid to the employee by the employer; (« emploi »)

"employment record" means the employment information referred to in subsection 135(1) and any other record needed to determine whether an employee is entitled to anything under this Code; (« relevé d'emploi »)

"employment standards officer" means an individual employed as an employment standards officer in the department and designated as an inspector under The Department of Labour Act; (« agent des normes d'emploi »)

"general holiday" means a day referred to in section 21; (« jour férié »)

"hours of work" means the hours or parts of hours during which an employee performs work for an employer and includes hours during which an employee is required by the employer to be present and available to work; (« heures de travail »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Code; (« ministre »)

"officer" means an employment standards officer, and includes the director; (« agent »)

"overtime" means hours of work that are in excess of standard hours of work; (« heures supplémentaires »)

"overtime wage" means the wage paid for overtime; (« rémunération des heures supplémentaires »)

"overtime wage rate" means the overtime wage rate established under subsection 17(1); (« taux de rémunération des heures supplémentaires »)

"pay period" means a period of employment of not more than 16 consecutive days; (« période de paye »)

"person" includes a corporation, union, firm, partnership, association, organization and public body; (« personne »)

"prescribed" means prescribed by a regulation made under this Code;

"receiver" includes a receiver-manager; (« séquestre »)

"record" includes a book, journal, tape, receipt, computer disc, computer print-out, document or other thing containing information or data of any kind; (« document »)

"regular hours of work" means the hours of work, not exceeding standard hours of work, during which an employee is required by an employer to be present for or engaged in work; (« heures normales de travail »)

"regular wage" means the wage paid or payable to an employee for regular hours of work, and includes

(a) an hourly wage,

(b) where paid or payable on a weekly basis, the weekly wage divided by the number of standard hours of work or regular hours of work of the employee in each week, whichever is less,

(c) where paid or payable on a monthly basis, the monthly wage multiplied by 12 and divided by the product of 52 times the standard hours of work or regular hours of work of the employee, whichever is less, or

(d) where none of clauses (a) to (c) applies, the hourly wage determined by an employment standards officer; (« salaire normal »)

"regular wage rate" means the wage rate that is ordinarily paid or payable to an employee; (« taux normal »)

"standard hours of work" means the hours of work established under Division 2 (hours of work) of Part 2; (« durée normale du travail »)

"union" means a union as defined in The Labour Relations Act; (« syndicat »)

"vacation allowance" means an allowance to which an employee is entitled under section 39 or 44; (« indemnité de congé annuel »)

"wage" means, except where otherwise provided in this Code or prescribed by regulation, compensation for work performed that is due and payable to an employee by his or her employer, and includes

(a) salary, commission or compensation in any other form whether measured by time, piece or otherwise, and

(b) a payment to which an employee is entitled under this Code, including a vacation allowance and any other benefit to which an employee is entitled under this Code; (« salaire »)

"week" means seven consecutive days; (« semaine »)

"work" means skilled or unskilled manual, clerical, domestic, professional or technical labour performed or services provided by an employee; (« travail »)

"year of employment" means a period of 12 consecutive months. (« année d'emploi »)

Meaning of "this Code"

1(2)      In this Code, a reference to "this Code" includes a regulation made under this Code.

"Wage" includes money payable by employee

1(3)      In this Code, "wage" includes money payable to an employer by an employee in lieu of the employee's giving the notice of termination of employment required under Division 10 (termination of employment) of Part 2.

Application of this Code

2(1)      Subject to subsection (3), this Code applies to all employers and employees, including the Crown, and an agency of the Crown, and its employees.

Meaning of "agency of the Crown"

2(2)      In subsection (1), "agency of the Crown" means a board, commission, association or other body of persons, whether incorporated or unincorporated, all the members of which, or all the members of the board of management or board of directors of which,

(a) are appointed by an Act of the Legislature or by order of the Lieutenant Governor in Council; or

(b) in the discharge of their duties, are public officers or servants of the Crown or for the proper discharge of their duties are, directly or indirectly, responsible to the Crown.

No application to independent contractor or others exempted by regulation

2(3)      This Code does not apply to

(a) an independent contractor; or

(b) an employer, employee, employment or business, or a group or class of employers, employees, employments or businesses, that is exempted by regulation.

Civil remedies and greater wages not affected

3(1)      Nothing in this Code affects

(a) a civil remedy of an employee or an employer; or

(b) an enactment, agreement, right at common law or custom that

(i) provides to an employee wages that are equal to or greater than those provided under this Code, or

(ii) imposes on an employer an obligation or duty that is greater than is imposed under this Code.

Agreement providing for greater wages

3(2)      If under an agreement an employee is to receive greater wages than are provided for under this Code, the employer must give the greater wages.

Code prevails over lesser wages

3(3)      This Code prevails over any enactment, agreement, right at common law or custom that

(a) provides to an employee wages that are less than those provided under this Code; or

(b) imposes on an employer an obligation or duty that is less than an obligation or duty imposed under this Code.

Code prevails in case of conflict with other Act

3(4)      Subject to clause (1)(b) (greater wages), in case of a conflict between another Act and this Code, including a regulation made under this Code, this Code prevails.

Agreement to work for lower standard is no defence

4         An employee's agreement to work for less than the prescribed minimum wage or under standards that are contrary to or less than provided for in this Code is not a defence in a proceeding or prosecution under this Code.

Continuity of employment

5         For the purpose of Divisions 4, 5 and 9 of Part 2 (minimum standards) of this Code, when the business of an employer or a part of the business is sold, leased, transferred, merged or otherwise disposed of whereby the control, direction or management of the business is given to another person, or the business continues to operate under a receiver, the employment of an employee is deemed to be continuous and uninterrupted.

PART 2

MINIMUM STANDARDS

DIVISION 1

MINIMUM WAGE AND MINIMUM WAGE BOARDS

Payment of minimum wage

6         Except as otherwise authorized under this Code, an employer shall not pay an employee less than the prescribed minimum wage.

Minister may establish minimum wage boards

7(1)      The minister may establish one or more boards, each to be known as a "minimum wage board", and shall appoint each member of a board for any term that the minister may determine and thereafter until a successor is appointed or the member is reappointed.

Composition of each minimum wage board

7(2)      A minimum wage board shall consist of not less than five members, of whom

(a) one is appointed by the minister as chairperson, and is not representative of either employers or employees;

(b) two or more are representative of employers; and

(c) a number equal to the number appointed under clause (b) is representative of employees.

Vacancy

7(3)      The minister may appoint an individual to fill a vacancy on a minimum wage board for the remainder of the term of the member being replaced, and the individual may serve thereafter until a successor is appointed or the individual is reappointed.

Remuneration

7(4)      A member of a board shall be paid such remuneration and reasonable expenses as may be fixed by the minister.

Minister may refer matter to minimum wage board

8(1)      The minister may refer to a minimum wage board any matter relating to minimum wages, including deductions from the wages and the conditions of employment of individuals earning the minimum wage, and the reference may include a direction that the board conduct a hearing and receive representations about the matter.

Board to report on referred matter

8(2)      A minimum wage board to which a matter is referred shall consider the matter in accordance with this section and the directions of the minister, and shall submit to the minister, within such period of time as the minister may specify, a written report of its findings and recommendations.

Board may conduct hearing, receive representations

8(3)      When a matter is referred to a board under subsection (1), the board may receive representations from interested persons and, with the approval of the minister, conduct a hearing.

DIVISION 2

HOURS OF WORK

Application of Division to construction industry

9         This Division does not apply to an employee whose standard hours of work are determined under The Construction Industry Wages Act.

Standard hours of work

10        Except as otherwise provided in this Division or the regulations, the standard hours of work for an employee are 40 hours in a week and eight hours in a day.

Increase in daily standard hours of work

11(1)     An employer may increase the daily standard hours of work that apply to an employee under section 10 if the weekly standard hours do not exceed 40 hours and the increased daily hours are

(a) provided for under a collective agreement; or

(b) approved by order of the board, on application by the employer.

No overtime for increased daily hours

11(2)     Overtime wage rates do not apply to daily standard hours of work established under subsection (1).

Shift work

12(1)     Subject to subsection (2), an employer may require an employee who usually works in shifts to work for more hours than the daily or weekly standard hours of work that apply to the employee under section 10 without payment at the overtime wage rate if the requirement, including the period of time over which it is to apply, is

(a) provided for under a collective agreement; or

(b) approved by order of the board, on application by the employer.

Overtime wage rate applies to excess hours

12(2)     If, over the period of time referred to in subsection (1), an employee's average hours of work exceed the daily or weekly standard hours of work that apply to the employee under section 10, the employer shall pay the employee for the excess hours at the overtime wage rate.

Board may authorize varied standard hours of work

13        If the board considers it unreasonable to apply the standard hours of work to an employer or business or a group or class of employers or businesses, the board may, on application by an employer or on application on behalf of a group or class of businesses, or on the board's initiative, by order

(a) authorize daily, weekly or monthly standard hours of work that the board considers fair and reasonable; and

(b) authorize the hours referred to in clause (a) to be applied for all or part of the year.

Board may set terms and conditions in order

14(1)     In making an order under this Division, the board may include such terms and conditions as it considers necessary or advisable.

Board to consider certain factors

14(2)     The board shall, before making an order under this Division, include the following in its considerations:

(a) any custom, practice or agreement that applies to the employment or business;

(b) any representation by a union that represents an employee who will be affected by the order or, if the employees are not represented by a bargaining agent, by a representative of the majority of the employees who will be affected by the order;

(c) any effect the order could have on the safety, health or welfare of members of the public and the employees who will be affected by the order.

Board may review order

15(1)     An order of the board made under this Division is valid for not more than two years, and the board may at any time, on application, review the order and vary, renew, revoke, or revoke and replace it.

Board may vary or revoke order

15(2)     The board may, on its own initiative, at any time vary or revoke an order made under this Division.

DIVISION 3

OVERTIME

Employer rights re overtime

16        Subject to this Code, the management rights of an employer do not include an implied right to require an employee to work overtime.

Overtime to be paid at overtime wage rate

17(1)     The overtime wage rate that an employer shall pay an employee who works overtime is 150% of the employee's regular wage rate for each hour or part of an hour of overtime.

Overtime does not include certain break time

17(2)     Overtime does not include time that an employer provides an employee as a break if the employee is not required to stay on the business premises or be on duty during the break.

Time off for overtime to be taken at certain times

18(1)     Where a written agreement between an employer and an employee provides that the employer is to provide the employee with time off instead of overtime wages, the employer shall provide the time during the employee's regular hours and the employee shall take the time

(a) within three months after the end of the pay period in which the overtime occurs; or

(b) within such longer period as may be approved by the director in writing or prescribed by regulation.

Overtime wages to be paid within certain time

18(2)     If the employee does not take time off within the time period that applies under subsection (1), the employer shall, not later than 10 days after the period expires, pay the employee overtime wages for any part of the overtime for which the employee has not taken time off, failing which the employee may, within six months after the expiration of the 10 days, file a complaint under section 92.

Amount of time off

18(3)     Time off provided under subsection (1) must be not less than 150% of the number of hours or parts of hours of overtime.

Regular wage rate for time off

18(4)     An employer shall pay an employee the regular wage rate for each hour or part of an hour of time off taken under this section.

Deeming of hours and payments during time off

18(5)     For the purpose of this Code, where an employee takes time off in accordance with this section,

(a) the hours of time off are deemed to be hours of work; and

(b) the payment to the employee under subsection (4) is deemed to be a wage.

Overtime wages to be paid on termination

18(6)     If the employment of an employee terminates within a time period that applies under subsection (1), the employer shall pay the employee overtime wages for the overtime or any part of the overtime for which the employee has not taken time off.

Overtime in emergencies

19        An employer may require an employee to work overtime where an occurrence beyond human control

(a) affects the life, health or safety of an individual; or

(b) interrupts or threatens to interrupt

(i) the provision of an essential service by the government, an agency of the government, a municipality or a public utility,

(ii) the provision of municipal services or health services by an employer, or

(iii) work urgently required to be done in respect of the business of the employer to the extent necessary to avoid serious interference with the ordinary operation of the business.

Overtime in declared state of emergency

20(1)     Subject to subsection (2), where a state of emergency is declared under The Emergency Measures Act, an employer may require an employee in a part of the province to which the declaration applies to work overtime to meet or relieve a need relating to the emergency.

Duration of mandatory overtime

20(2)     An employer may continue to require an employee to work overtime until the state of emergency is terminated under The Emergency Measures Act.

DIVISION 4

GENERAL HOLIDAYS

General holidays

21        For the purpose of this Code, the following days are general holidays:

(a) New Year's Day;

(b) Good Friday;

(c) Victoria Day;

(d) Canada Day;

(e) Labour Day;

(f) Thanksgiving Day;

(g) Christmas Day;

(h) any other day designated by regulation as a general holiday.

Eligibility to be paid wages for general holiday

22        An employee is eligible to be paid wages by an employer for a general holiday if the employee earns wages in respect of employment with the employer for at least 15 of the 30 days before the holiday.

Entitlement of employee not working on work day

23(1)     Except as otherwise provided in this Division, if a general holiday falls on a day that would normally be a work day for an employee and the employee does not work on the holiday, the employer shall pay the employee not less than the wage the employee would have earned if the day were not a holiday.

Entitlement of employee whose wages vary

23(2)     Where the wages of an employee referred to in subsection (1) vary from day to day, the employer shall pay the employee an amount that is not less than the average daily wage of the employee, not including any overtime wages, in the 30 days before the general holiday.

Employee entitled whether or not on payroll

23(3)     An employee who is eligible under section 22 is entitled to wages under this section whether or not he or she is on the payroll of the employer on the day of the general holiday, unless the employee terminates the employment before the holiday.

Entitlement of employee working on normal day off

24        If a general holiday falls on a day that would normally be a work day for an employee and the employee does not work on the holiday but works on another day in the same week that would normally be the employee's day off, the employer shall pay the employee the overtime wage rate for the hours worked on that other day.

Entitlement to wage for general holiday not worked

25        An employee is not entitled to be paid wages for a general holiday on which the employee does not work if

(a) the holiday falls on a day that is normally a work day for the employee and the employee is required or scheduled to work, unless the employee does not work because he or she is ill or has been dismissed or laid off by the employer; or

(b) the employee is absent from work on the employee's last regular work day before or the employee's first regular work day after the holiday without the consent of the employer, unless the employee is absent due to illness.

Employee working on holiday entitled to wages

26        An employee who works on a general holiday and is eligible under section 22 to be paid wages for a general holiday shall be paid not less than his or her regular wages for the day and, in addition, the overtime wage rate for the hours worked on the holiday.

Employee working on holiday entitled to overtime 27 If an employee who has earned wages in respect of employment with an employer for less than 15 days of the 30 days before a general holiday works on the holiday, the employer shall pay the employee at the overtime wage rate for the hours worked.

Definitions

28(1)     In clause (2)(a),

"continuously operating business" means a business that in a week usually operates day and night without interruption until completion of the regular operation of the business; (« entreprise à production ininterrompue »)

"seasonal business" means a business that in each year suspends operations for one or more periods of not less than least three weeks each owing to a fluctuation in market demand that is characteristic of the business or related to the ripening of a crop, but does not include the construction industry. (« entreprise saisonnière »)

Time off instead of overtime wage

28(2)     Despite section 26, an employee who works on a general holiday is not entitled to the overtime wage rate if the employee

(a) is employed in a continuously operating business, seasonal business, place of amusement, gasoline service station, hospital, hotel or restaurant or in domestic service; and

(b) receives from the employer, in addition to any annual vacation to which the employee is entitled, time off equal to the number of hours worked on the holiday, with regular wages,

(i) subject to subsection (3), within 30 days after the general holiday, or

(ii) where the employee and the employer agree, more than 30 days after the general holiday but not later than the employee's next annual vacation.

Employer to give notice of compensatory time off

28(3)     For the purpose of subclause (2)(b)(i), the employer shall give the employee not less than two days' notice of the day on which the employee may take the time off.

Certain holidays falling on non-working day

29(1)     If a general holiday other than a holiday referred to in subsection (2) falls on a day that is not an employee's normal working day, the employer shall provide the employee with a day off, with regular wages, not later than the next annual vacation of the employee or on a day or at a time agreed upon by the employer and the employee.

Certain holidays falling on Saturday or Sunday

29(2)     If New Year's Day, Canada Day or Christmas Day falls on a Sunday or a Saturday that is not an employee's normal working day, the employer shall give the employee a day off on the first working day after that holiday and pay regular wages to the employee for the day off.

Substitution of other day for general holiday

30(1)     An employer may substitute another day for a general holiday if the substitution is made

(a) in accordance with a collective agreement; or

(b) with the agreement of the bargaining agent for the employees or, where the employees do not have a bargaining agent, with the written agreement of a majority of the employees.

Substituted day is deemed general holiday

30(2)     A day substituted for a general holiday under subsection (1) is deemed to be a general holiday for the purpose of this Code.

Onus

30(3)     The onus is on the employer to establish that the substitution of a day for a general holiday is done in accordance with subsection (1).

Wages on termination for holiday time not taken

31        Where an employee is given a day off under section 29 or subsection 28(2) or 30(1) and the employment is terminated before the day is taken, the employer shall pay the employee regular wages for the general holiday as if the day were a normal working day.

Construction employees

32        Despite the other provisions of this Division, the employer of an employee employed in construction shall, in respect of general holidays in a year, pay the employee

(a) if the employee works on a holiday, the overtime wage rate for the hours worked; and

(b) not later than December 31 of that year or on termination of the employment, whichever occurs first, an amount equal to 4% of the wages, other than overtime wages, of the employee in that year, whether or not the employee works on any of the holidays.

Application to minimum wage earners

33        If in respect of a general holiday an employee earning the prescribed minimum wage is entitled under a regulation made under this Code to wages that are greater than the entitlement under this Division, the regulation prevails.

DIVISION 5

ANNUAL VACATIONS AND VACATION ALLOWANCES

Employee entitlement to annual vacation

34(1)     An employee is entitled to an annual vacation of at least

(a) two weeks after each of the first four years of employment; and

(b) three weeks after five consecutive years of employment and each year of employment after that.

Annual vacation does not include general holiday

34(2)     The annual vacation referred to in subsection (1) does not include a general holiday that falls on a day during the employee's vacation and that the employee is entitled to.

When annual vacation to be given

35        An employer shall give an employee an annual vacation not later than 10 months after the employee becomes entitled to it.

Setting dates for annual vacation

36        If an employer and an employee are unable to agree on when the employee will take the annual vacation, the employer shall give the employee at least 15 days' notice of the date on which the vacation is to begin, and the employee must take the vacation at that time.

Period of vacation not to be less than a week

37        An employer shall not require an employee who is entitled to an annual vacation to take less than a week at a time.

Vacation may be required during annual shut-down

38        Despite section 37, where the business of an employer customarily shuts down for an extended period in each year, the employer may require the employees to take their annual vacations during that period.

Meaning of "wages"

39(1)     In clause (2)(a), "wages" does not include

(a) overtime wages;

(b) any wages paid to the employee under clause 77(a) (instead of notice of termination); and

(c) any vacation allowance paid in the year of employment.

Amount of vacation allowance

39(2)     An employer shall pay to an employee who is entitled to an annual vacation, for each week of the vacation, a vacation allowance consisting of

(a) 2% of the wages that the employee earned in the year of employment in respect of which the employee is entitled to the annual vacation; and

(b) if the employer provides board and lodging, or pays an allowance in lieu of board and lodging, as part of the usual remuneration of the employee, an amount equal to 2% of the cash value of the board and lodging or allowance that the employee received in the year of employment in respect of his or her regular hours of work.

Time of payment of vacation allowance

39(3)     Unless the employee otherwise agrees, the employer shall pay the vacation allowance to the employee not later than the last working day before the employee's annual vacation begins.

Determining the cash value of board and lodging

39(4)     For the purpose of clause (2)(b), the cash value of board and lodging is the amount deducted from the wages of the employee by the employer for the board and lodging or, where no deduction is made,

(a) the amount agreed upon by the employer and the employee; or

(b) where no amount is agreed upon, the amount calculated in accordance with the regulations.

Certain payments do not affect vacation entitlement

40        The payment of a bonus or other pecuniary benefit by an employer to an employee does not affect the employee's entitlement to an annual vacation or vacation allowance.

Effect of previous year or vacation taken in advance

41        An employee's entitlement to an annual vacation and vacation allowance is not affected by his or her having received in a previous year an annual vacation or vacation allowance that was greater than the employee's entitlement, but this section does not apply in respect of an annual vacation or vacation allowance, or any part of a vacation or allowance, that an employee receives in advance of being entitled to it.

Employer may use common anniversary date

42(1      ) Despite sections 34 (annual vacation) and 39 (vacation allowance), an employer may establish a common anniversary date for all employees or a group of employees for the purpose of calculating their annual vacations and vacation allowances.

Director may prohibit common anniversary date

42(2)     Despite subsection (1), the director may, on application by a bargaining agent for employees or, where the employees do not have a bargaining agent, an employee affected by a common anniversary date established under subsection (1), by order

(a) revoke the establishment of the date and prohibit the employer from establishing such a date for such time as may be specified in the order; or

(b) set terms and conditions for the use of the date, including setting a time period for its use and limiting its application to certain employees.

Employer to give proportion of entitlements

42(3)     Where an employee is subject to a common anniversary date and has not on that date completed a year of employment, the employer shall give the employee an annual vacation and vacation allowance in the proportion that his or her time of employment in the year is to the entitlements under sections 34 and 39.

Effect of notice of termination

43        Where an employer or employee gives notice of termination of the employee's employment,

(a) no part of the employee's annual vacation may be used to calculate the required notice period unless, in the case of an employee giving notice, the employer otherwise agrees; and

(b) the payment of a vacation allowance to the employee does not affect any other amount payable to the employee in respect of the termination.

Meaning of "wages"

44(1)     In subsection (2), "wages" does not include

(a) overtime wages;

(b) any wages paid to the employee under clause 77(a) (instead of notice of termination); and

(c) any vacation allowance paid in the year of employment.

Payment of vacation allowance on termination

44(2)     If an employee's employment terminates before he or she is entitled to an annual vacation, the employer shall pay the employee a vacation allowance equal to

(a) if the employee has not completed five consecutive years of employment with the employer, 4% of the wages earned since the date the employee became employed by the employer or the date the employee last became entitled to an annual vacation, whichever is later; and

(b) if the employee has completed five consecutive years of employment with the employer, an additional 2% of the wages earned from the date the employee last became entitled to an annual vacation to the date of termination.

DIVISION 6

WEEKLY DAY OF REST

Employer to provide day of rest

45        Subject to sections 46 and 47, an employer shall ensure that each employee has one rest period of not less than 24 consecutive hours in each week.

Employer may apply for exemption of business

46        An employer may apply to the board in writing to have the business exempted from the application of section 45, and the board may by order exempt the business, for such period as the board may specify in the order, if the board is satisfied that the application of section 45 to the business

(a) is an undue hardship to the employer;

(b) is of little or no benefit to the employees owing to the remote location of the business;

(c) in the case of a business that operates only part of the year, unduly restricts the operation of the business; or

(d) causes severe loss to the business owing to the circumstances in which it operates.

Employer and bargaining agent may apply for exemption

47        An employer and the bargaining agent for the employees of the employer's business may apply jointly to the board in writing to have the business exempted from the application of section 45, and the board may by order exempt the business for such period as the board may specify in the order.

Employee entitled to day off without pay

48        Subject to any order made by the board under section 46 or 47, an employee who, pursuant to an order made under those sections, works on a day that he or she would otherwise be entitled to as a day of rest under section 45 is entitled in place of the day worked to a day off without pay on a day specified by the employer.

Board may set conditions and vary order

49        The board may include terms and conditions in an order made under section 46 or 47 and vary or revoke the order.

DIVISION 7

WORK BREAKS

Employer to provide break

50(1)     Subject to this section, an employer shall not require an employee to work for more than five consecutive hours without a break.

Length of break

50(2)     The length of break provided by an employer must not be less than is prescribed unless

(a) a shorter period is provided for in a collective agreement; or

(b) the board, on application by the employer, by order approves a shorter period.

Board may set conditions and vary order

50(3)     The board may include terms and conditions in an order made under clause (2)(b) and may vary or revoke the order.

DIVISION 8

CALL IN WAGES

Entitlement of employee to call in wages

51        If an employee is called to work on a day that is not the employee's regular work day and is required to work for less than three hours, the employer shall pay the employee his or her regular wages for three hours of work unless the employee's regular hours of work on a regular work day are three hours or less.

DIVISION 9

MATERNITY LEAVE AND PARENTAL LEAVE

MATERNITY LEAVE

Definitions

52        In this Division,

"date of delivery" means the date when the pregnancy of an employee terminates with the birth of a child; (« date d'accouchement »)

"medical certificate" means the signed statement of a duly qualified medical practitioner. (« certificat médical »)

Eligibility for maternity leave

53        A pregnant employee who has been employed by the same employer for at least 12 consecutive months is eligible for maternity leave.

Length of maternity leave

54(1)     Subject to subsection (3), an employee who is eligible for maternity leave is entitled to the following maternity leave:

(a) if the date of delivery is on or before the date estimated in a medical certificate, a period of not more than 17 weeks; or

(b) if the date of delivery is after the estimated date, 17 weeks and a period of time equal to the time between the estimated date and the date of delivery.

Beginning and end of maternity leave

54(2)     A maternity leave must begin not earlier than 17 weeks before the date of delivery estimated in the medical certificate and end not later than 17 weeks after the date of delivery.

Employee to provide certificate and give notice

54(3)     An employee who is eligible for maternity leave shall

(a) as soon as practicable, provide the employer with a medical certificate giving the estimated date of delivery; and

(b) give the employer not less than four weeks' written notice of the date she will start her maternity leave.

Maternity leave if notice given after stopping work

55(1)     An employee who is eligible for maternity leave but does not give notice under clause 54(3)(b) before leaving the employment is still entitled to maternity leave if, within two weeks after stopping work, she gives notice and provides her employer with a medical certificate

(a) giving the date of delivery or estimated date of delivery; and

(b) stating any period or periods of time within the 17 weeks before the date of delivery or estimated date of delivery that the normal duties of the employment could not be performed because of a medical condition arising from the pregnancy.

Length of maternity leave

55(2)     The maternity leave to which the employee is entitled under subsection (1) is

(a) any time, within the time referred to in clause (1)(b), that she does not work; and

(b) the difference between that time and the time she would receive if she were entitled under subsection 54(1).

Maternity leave where notice not given

56        An employee who is eligible for maternity leave but who does not give notice under clause 54(3)(b) or subsection 55(1) is still entitled to maternity leave for a period not exceeding the time she would receive if she were entitled under subsection 54(1).

End of maternity leave where notice not given

57        The maternity leave of an employee referred to in subsection 55(1) or section 56 terminates not later than 17 weeks after the date of delivery.

PARENTAL LEAVE

Employee entitled to parental leave

58(1)     An employee who adopts a child under the laws of the province or becomes the natural parent of a child is entitled to parental leave to a maximum of 17 continuous weeks if

(a) the employee has been employed by the employer for at least 12 consecutive months; and

(b) the employee gives written notice to the employer at least four weeks before the day specified in the notice as the day on which the employee intends to begin the leave.

Effect of late notice on parental leave

58(2)     An employee who gives less notice than is required under clause (1)(b) is entitled to the 17 weeks of parental leave less the number of days by which the notice given is less than four weeks.

Commencement of parental leave

58(3)     A parental leave must commence not later than the first anniversary of the date on which the child is born or adopted or comes into the care and custody of the employee.

Maternity and parental leaves must be continuous

59        An employee who takes maternity leave and parental leave shall take them in one continuous period, unless the employee and the employer otherwise agree or a collective agreement otherwise provides.

GENERAL

Prohibition of certain terminations and lay-offs

60(1)     No employer shall lay-off or terminate the employment of an employee who has completed 12 consecutive months of employment with the employer solely because the employee is pregnant, gives notice under clause 54(3)(b) or subsection 55(1), or gives notice or takes parental leave under section 58.

Reinstatement of employee after leave

60(2)     If an employee wishes to resume employment after maternity leave or parental leave, the employer shall reinstate the employee to the position occupied when the leave began or a comparable position, with not less than the wages and any other benefit earned by the employee immediately before the leave began.

Employment is deemed continuous

60(3)     For the purpose of pension and other benefits, the employment of an employee with the same employer before and after maternity leave or parental leave is deemed to be continuous.

DIVISION 10

TERMINATION OF EMPLOYMENT

SUBDIVISION 1

TERMINATION OF THE EMPLOYMENT OF AN INDIVIDUAL

Notice of termination

61        Except as otherwise provided in this Division, an employer shall not terminate the employment of an employee and an employee shall not terminate his or her employment without giving notice to the other of not less than one pay period.

Exceptions to notice requirement

62        Section 61 does not apply in any of the following circumstances:

(a)  the business of the employer has a general custom or practice respecting the amount of notice to be given to terminate employment in the business;

(b) an agreement between the employer and employees contains a provision respecting the amount of notice to be given to terminate the employment;

(c) the employer has established a practice under section 63 by which the period of notice is less than is required under section 61;

(d) the termination occurs within the first 30 days of the employment, unless the employer and employee agree in writing, before the employment begins, that section 61 applies;

(e) the employment terminates at the end of a period of employment that is fixed;

(f) the employment is for a specified work or undertaking and for a period of not more than 12 months, on completion of which the employment terminates;

(g) the employee is laid off;

(h) the employee acts in a manner that constitutes wilful misconduct or disobedience or wilful neglect of duty that is not condoned by the employer;

(i) the employee is employed under an agreement or contract of employment that is impossible to perform or is frustrated by a fortuitous or unforeseeable circumstance;

(j) the employee is laid off after refusing an offer of reasonable alternate work made available to the employee through a seniority system or by the employer;

(k) the employee is laid off and does not return to work within a reasonable time after being requested to do so by the employer;

(l) the employee is on strike or is locked out;

(m) the employee is employed in construction;

(n) the employee is employed under an arrangement by which the employee may elect to work or not to work for a temporary period when requested to work by the employer;

(o) the employee reaches the age at which it is the established custom or practice in the business of the employer for employees to retire;

(p) in the case of termination by an employer, the employee acts in a manner that is insubordinate or violent toward the employer or dishonest in the course of the employment;

(q) in the case of termination by an employee, the employer acts in a manner that is violent or improper toward the employee.

Employer may establish a practice re notice

63(1)     An employer may

(a) establish a practice respecting the termination of employment by the employer or an employee by giving written notice of the practice to each employee and posting a notice of it in conspicuous places at the work place for not less than 30 days; and

(b) continue the practice by keeping the notice posted in conspicuous places at the work place and giving written notice of the practice to each new employee.

Notice of practice to be given to new employees

63(2)     An employer that establishes a practice under subsection (1) shall give written notice of it to each new employee at the time the employment begins.

Notice where term of employment is not fixed

64        Where an employee's term of employment is not fixed and wages are paid less often than once in each month, the required notice of termination of employment is a period of not less than 30 days.

Notice where fixed term is continued

65(1)     If an employee's term of employment is fixed but is continued by mutual agreement after the fixed term expires, the notice required under section 61 applies.

Further term may be fixed

65(2)     Subsection (1) does not affect any right to fix a further term of employment in respect of an employee whose fixed term has expired.

SUBDIVISION 2

TERMINATION OF THE EMPLOYMENT OF A GROUP OF EMPLOYEES

Meaning of "affected employees"

66        In this Subdivision, "affected employees" means employees whose employment is terminated or is to be terminated and in respect of whom notice is required to be given under subsection 67(1).

Notice of intent to terminate employment of 50 or more employees

67(1)      An employer that terminates or intends to terminate the employment of 50 or more employees within a period of four weeks shall give the minister at least the following amount of written notice before the date on which the first termination is to take effect:

(a) if the number of affected employees is 100 or less, 10 weeks;

(b) if the number of affected employees is more than 100 and less than 300, 14 weeks;

(c) if the number of affected employees is 300 or more, 18 weeks.

Notice not required for certain terminations

67(2)     Subsection (1) does not apply in any of the following circumstances:

(a) the termination occurs within the first 30 days of the employment, unless the employer and employee agree in writing, before the employment begins, that section 61 applies;

(b) the employment terminates at the end of a period of employment that is fixed;

(c) the employment is for a specified work or undertaking and for a period of not more than 12 months, on completion of which the employment terminates;

(d) the employee is laid off;

(e) the employee acts in a manner that constitutes wilful misconduct or disobedience or wilful neglect of duty that is not condoned by the employer;

(f) the employee is employed under an agreement or contract of employment that is impossible to perform or is frustrated by a fortuitous or unforeseeable circumstance;

(g) the employee is laid off after refusing an offer of reasonable alternate work made available to the employee through a seniority system or by the employer;

(h) the employee is laid off and does not return to work within a reasonable time after being requested to do so by the employer;

(i) the employee is on strike or is locked out;

(j) the employee is employed in construction;

(k) the employee is employed under an arrangement by which the employee may elect to work or not to work for a temporary period when requested to work by the employer;

(l) the employee reaches the age at which it is the established custom or practice in the business of the employer for employees to retire;

(m) in the case of termination by an employer, the employee acts in a manner that is insubordinate or violent toward the employer or dishonest in the course of the employment.

Employer to give copy of notice to certain persons

67(3)     An employer giving notice under subsection (1) shall immediately

(a) give a copy of the notice to the bargaining agent for the affected employees; and

(b) if any of the affected employees do not have a bargaining agent, give a copy of the notice to each of them or post the notice in conspicuous places at the work place.

Content of notice

67(4)     A notice under subsection (1) must include the following:

(a) the effective dates of the terminations;

(b) the reasons for the terminations;

(c) for the purpose of subsection 71(1) (joint planning committee), the nomination of at least two individuals to represent the employer on a joint planning committee;

(d) the estimated number of affected employees in each occupational classification;

(e) any other prescribed information.

Individual notice required under Subdivision 1

68(1)     A notice given or posted by an employer under subsection 67(3) constitutes notice to an employee for the purpose of Subdivision 1 only if the employee is identified in the notice and the length of notice meets the requirements of that Subdivision.

Notice of termination by affected employee

68(2)     An affected employee who terminates his or her employment after the employer has given notice to the minister under subsection 67(1) but before the expiration of the applicable time shall give the employer the notice required under Subdivision 1.

Minister may exempt employees

69        The minister may, on application, by order waive the application of subsection 67(1) (notice to the minister) to affected employees or a class of affected employees, subject to any terms or conditions specified in the order, where the minister is satisfied that the application is

(a) unduly prejudicial to the interests of the employees or a class of employees;

(b) unduly prejudicial to the interests of the employer; or

(c) seriously detrimental to the operation of the business of the employer.

Employer and agent to co-operate with minister

70        An employer that gives notice to the minister under subsection 67(1) and a bargaining agent that is given a copy of the notice under clause 67(3)(a) shall co-operate with the minister in any action or program initiated by the minister to eliminate the necessity for terminating the employment of the affected employees, and to facilitate the reinstatement of employees whose employment is terminated.

JOINT PLANNING COMMITTEE

Minister may appoint joint planning committee

71(1)     The minister may, in respect of a notice given by an employer under subsection 67(1), establish a joint planning committee and appoint the members of the committee, as follows:

(a) not less than two individuals nominated by the employer under clause 67(4)(c) to represent the employer;

(b)  subject to subsection (2), a number equal to the number appointed under clause (a), to represent the affected employees;

(c)  any other individuals the minister considers suitable to serve on the committee and who do not represent the employer or the affected employees.

Appointment of employees' representatives

71(2)     The minister shall appoint the individuals referred to in clause (1)(b)

(a) if the affected employees are represented by a bargaining agent, from among individuals nominated by the bargaining agent; or

(b) if the affected employees are not represented by a bargaining agent, from among individuals nominated by the employees.

Employees to elect individuals for nomination

71(3)     For the purpose of clause (2)(b), the affected employees shall elect individuals for nomination, and the employer shall assist the employees to arrange the election.

Joint planning committee to have co-chairs

71(4)     A joint planning committee shall have two chairpersons, one elected by the members appointed under clause (1)(a) and one elected by the members appointed under clause (1)(b).

Minister may provide terms of reference

72(1)     The minister may provide the joint planning committee with a statement of matters to be considered by the committee and a date by which the committee is to report to the minister on the matters.

Procedure

72(2)     A joint planning committee may determine its own procedure.

First meeting

72(3)     The members of a joint planning committee shall meet within seven days after the committee is constituted.

Employer to give employee time off for committee

73        The employer of an affected employee who is a member of a joint planning committee

(a) shall give the employee any time required during the employee's working hours to attend committee meetings and to carry out the functions of a committee member; and

(b) shall pay the employee for those hours as if they were regular hours of work for the employee.

Objectives of joint planning committee

74        The objectives of a joint planning committee are to develop on a co-operative basis an adjustment program to eliminate the need to terminate the employment of the affected employees, to minimize the impact of termination on employees whose employment is terminated and to help the terminated employees obtain other employment.

Employer and employees to assist joint committee

75        When a joint planning committee is established, the employer, the affected employees and any bargaining agent representing the employees shall cooperate with the committee and assist it to attain its objectives, and shall provide the committee with such information as the committee reasonably requires.

SUBDIVISION 3

WORKING CONDITIONS AFTER NOTICE, PAYMENT IN LIEU OF NOTICE, LAY-OFFS AND COMPLAINTS

Employer not to change conditions after notice

76        An employer that gives notice under section 61 or subsection 67(1) shall not change the working conditions or wage rates of an employee to whom the notice is given or of an affected employee, as that term is defined in section 66, except

(a) in accordance with a collective agreement; or

(b) with the written consent of the bargaining agent for the affected employee or, where the affected employee does not have a bargaining agent, with the written consent of the affected employee.

Employer may pay wages instead of giving notice

77        An employer may terminate the employment of an employee without giving the notice required under this Division if the employer pays to the employee

(a) wages that the employee would receive if the employee worked his or her regular hours of work at the regular wage rate for the period of notice required under Subdivision 1 or, where the employee is an affected employee under Subdivision 2, under subsection 67(1); and

(b) any other wages to which the employee is entitled.

Lay-off deemed to be termination

78        Subject to the regulations, an employer that lays off an employee is deemed for the purpose of this Division to have terminated the employment of the employee.

Complaint respecting improper termination

79        An employee or employer that claims the employment has been terminated contrary to this Division may, within six months after the day on which the employment was terminated, file a complaint under section 92.

DIVISION 11

HOME WORK

Meaning of "home work"

80(1)     In this section, "home work" means work that an employee performs at his or her home, but does not include the sale of goods or services.

Employer to maintain records

80(2)     An employer that engages individuals to do home work shall keep and maintain, and make available to an officer on request, at the principal place of business of the employer in the province a record of the name and address of each employee, a description of the type and amount of work done by the employee, the amount of wages paid by the employer, the rate of wages for the work, any amount deducted from wages earned by the employee, and any other prescribed information.

Director may impose conditions respecting wages

80(3)     The director may impose conditions and limitations on an employer in respect of the wages of an individual employed to perform home work when the director considers it necessary or advisable to do so to ensure compliance with the provisions of this Code.

DIVISION 12

RIGHT TO REFUSE TO WORK ON SUNDAY

Certain employees may refuse to work on Sunday

81        An employee in a retail business establishment as defined in The Retail Businesses Holiday Closing Act may refuse to work on a Sunday if

(a) the employee gives the employer at least 14 days' notice before the Sunday; and

(b) in respect of that Sunday, the establishment is exempt under clause 4.1(2)(b) (exemption in force by by-law or regulation) of The Retail Businesses Holiday Closing Act from the application of sections 2 and 3 of that Act.

DIVISION 13

EQUAL WAGES

Discrimination in wage scales prohibited

82(1)     No employer shall discriminate between male employees and female employees by paying one sex on a different scale of wages than applies to the other sex if the kind or quality of work and the amount of work required of, and done by, the employees is the same or substantially the same.

Complaint respecting equal wages

82(2)     Where an employer fails to pay wages to an employee in accordance with this section, the employee may, within six months after the failure to pay, file a complaint under section 92.

DIVISION 14

CHILDREN AND ADOLESCENTS

Definition

83(1)     In this section, "child" means an individual under the age of 16 years;

Employment of individual under 16

83(2)     Subject to this section and the regulations, no person shall employ a child without a permit obtained, on application, from the director and except in accordance with the permit.

Certain employment of children prohibited

83(3)     The director shall not issue a permit under subsection (2) to allow a child to work in a business if, in his or her opinion, the safety, health or well-being of the child is likely to be adversely affected.

Prohibition of employment in certain businesses

83(4)     No person shall employ a child in an employment in which a substantive part of the producing, cleaning, altering, repairing or servicing of any material, substance, article, machinery or thing is done with machinery.

Meaning of "adolescent"

84(1)     In this section, "adolescent" means an individual who is 16 or 17 years of age.

Adolescent deemed to be adult

84(2)     An adolescent who is employed is deemed to be an adult for the purpose of this Code.

Regulations

84(3)     The Lieutenant Governor in Council may make regulations

(a) prohibiting or regulating the employment of adolescents on any basis the Lieutenant Governor in Council considers reasonable or necessary, including the nature of the employment and the safety, health and well-being of adolescents; and

(b) authorizing the director to approve exceptions to a regulation made under clause (a) and impose terms and conditions on the employment of adolescents.

DIVISION 15

INDIVIDUALS WITH DISABILITIES

Director may authorize certain wages

85(1)     Despite Division 1 (minimum wage) of Part 2 and subject to the regulations, if the director is satisfied that a proposed employment arrangement between an employer and an employee who has a mental or physical disability is satisfactory for both of them, the director may, on application by the employer in a form acceptable to the director, issue a permit

(a) authorizing the employer to pay the employee a wage that is less than the minimum wage; and

(b) authorizing the employee to receive less than the minimum wage.

Terms and conditions

85(2)     A permit under subsection (1) may be issued for such period of time and made subject to such terms and conditions as are prescribed or the director may set.

PART 3

PAYMENT OF WAGES

DIVISION 1

TIME AND METHOD OF PAYMENT OF WAGES

Wages to be paid within certain time

86(1)     Subject to subsection (2), an employer shall pay an employee the wages earned by the employee at least semi-monthly and

(a) within 10 working days after the expiration of each pay period; and

(b) when the employee's employment is terminated, within 10 working days after the termination.

Exceptions

86(2)     Subsection (1) does not apply in respect of an employer that

(a) pays wages in accordance with an established custom or practice or a collective agreement that exists on the coming into force of this Code; or

(b) applies for and obtains an order from the director exempting the employer from the application of subsection (1) and specifying the times at which wages are to be paid.

Director may vary or revoke order

86(3)     An order made under clause (2)(b) may not be referred to the board under section 110, but the director may on application vary or revoke the order.

Complaint respecting payment of wages

87        Where an employer fails to pay wages to an employee in accordance with section 86, the employee may, within six months after the time provided for the payment of the wages under that section, file a complaint under section 92.

How wages are to be paid

88        An employer shall pay wages

(a) in Canadian currency;

(b) by cheque or bill of exchange drawn upon a chartered bank, credit union, trust company or other company insured under the Canada Deposit Insurance Corporation Act; or

(c) by deposit in the employee's account in an institution referred to in clause (b).

Employer to pay certain wages to director

89(1)     An employer that is unable to locate an employee shall pay to the director any wages payable to the employee, and the payment discharges the liability of the employer to the extent of the payment.

Director to pay money to employee or hold in trust 89(2) The director shall pay to an employee any money received on the employee's behalf under subsection (1), but if the employee cannot be located within one month after the money is received, the director shall, subject to subsection (3), hold the money in trust and pay it to the employee on request.

Director may transfer money to Consolidated Fund

89(3)     If the director receives wages from an employer on behalf of an employee and the employee cannot be located within six years, the director may transfer the money to the Consolidated Fund, but if after the transfer the employee claims the money, the Minister of Finance shall, on the written requisition of the minister, pay it to the employee from the Consolidated Fund.

DIVISION 2

DIRECTORS OF CORPORATIONS

Liability of corporate directors

90        Despite any other Act and subject to the regulations, where a corporation is an employer, the directors of the corporation are jointly and severally liable for

(a) the unpaid wages, other than any vacation allowance, of an employee earned during a period of not more than six months; and

(b) the unpaid vacation allowance of an employee earned during any period of time.

Officer may order corporate director to pay wages

91(1)     An officer making an order under subsection 96(1) may, where the employer is a corporation, order a director of the corporation who is liable under section 90 to pay all or some of the unpaid wages, whether or not the corporation is ordered to pay the wages.

Provisions on recovery of wages apply to corporate directors

91(2)     The provisions of this Code respecting the recovery of wages from an employer apply with necessary modifications to the recovery of wages from a director of a corporation.

Corporate director may recover from corporation

91(3)     If a director of a corporation pays wages under an order, nothing in this Code affects any right the director has to bring an action against the corporation for contribution or indemnification for the wages paid.

DIVISION 3

COMPLAINTS, INVESTIGATIONS AND DETERMINATIONS

Filing of complaint with officer re unpaid wages

92        A complaint under any of the following provisions may be filed with an officer in a form acceptable to the director:

(a) subsection 18(2) (overtime wages);

(b) section 79 (improper termination);

(c) subsection 82(2) (equal wages);

(d) section 87 (payment of wages).

When complaint may be refused

93        The director may refuse to accept or investigate, or to continue to investigate, a complaint if

(a) the employee is proceeding with other action in respect of the subject matter of the complaint or has obtained recourse before a court, tribunal or arbitrator or by some other form of adjudication; or

(b) the director is satisfied that the employer and employee have settled the complaint.

Officer may file caveat, notice, financing statement

94(1)     An officer may, at any time after receiving a complaint from an employee under section 92, file or register any or all of the following documents in the name of the director on behalf of the employee or the director in respect of wages alleged in the complaint to be unpaid or, if the officer has made an order under section 96, in respect of wages, administrative costs and interest:

(a) in a land titles office,

(i) in the case of land subject to The Real Property Act, a caveat, or

(ii) in the case of land subject to The Registry Act, a notice,

claiming an interest in any land affected by the caveat or notice;

(b) in the Department of Natural Resources, a notice claiming an interest in Crown lands, as defined in The Crown Lands Act;

(c) in The Personal Property Registry, a financing statement in the form and manner prescribed under The Personal Property Security Act claiming an interest in collateral.

Employee's interest is lien on employer's property

94(2)     The interest of the employee or the director in respect of a document filed or registered under any of clauses (1)(a) to (c) is a lien and charge on the property and assets of the employer for the amount of any unpaid wages, administrative costs and interest.

Limit on registration of caveat or notice in L.T.O.

94(3)     Despite clause (1)(a), a caveat or notice may not be registered in a land titles office after an order is filed in the court under section 103 in respect of the same matter, and any such registration is void.

Perfection on registration under P.P.S. Act

94(4)     Upon registration of a financing statement under clause (1)(c), the lien and charge arising under subsection (2)

(a) is deemed to be a security interest under The Personal Property Security Act on the personal property of the employer; and

(b) is deemed to have been perfected on the day the wages were due or accruing due.

Effect of registration under P.P.S. Act

94(5)     Upon registration of a financing statement under clause (1)(c), the director is deemed to be a secured party under The Personal Property Security Act, and the employer is deemed to be a debtor under that Act.

Remedies to enforce lien and charge are cumulative

94(6)     The remedies respecting the enforcement of a lien and charge given under this Code and The Personal Property Security Act may be exercised cumulatively.

Dismissal of complaint by order

95        An officer who investigates a complaint and determines that no contravention of this Code has occurred shall dismiss the complaint by order.

Order for payment of wages

96(1)     An officer who investigates a complaint and determines that wages are due and payable to an employee or employer may by order require the employer or employee to pay to the director the amount that is due and payable, and where such an order is made, shall in the order require the payment of administrative costs in the amount of $100. or 10% of the wages, whichever is more, to a maximum of $1,000.

Maximum amount recoverable

96(2)     An order made under subsection (1) for the payment of wages is limited

(a) to wages due and payable in the six months immediately before the date on which the complaint is filed or, where the employment has been terminated, to wages due and payable in the last six months of the employment; and

(b) if the complaint relates to a vacation allowance or wages for a general holiday, to wages due and payable in the 22 months immediately before the date on which the complaint is filed or, where the employment has been terminated, to wages due and payable in the last 22 months of the employment.

Certain orders to provide for interest

97(1)     An order made under subsection 96(1) or 117(3) for the payment of wages must provide for the payment of interest on the amount payable, in accordance with the regulations.

Interest on money received by director

97(2)     Subject to the regulations, money held in trust by the director pursuant to section 119, other than a security bond provided under section 113, is payable to the person entitled with interest calculated in accordance with the regulations.

DIVISION 4

RECEIVERS

Receiver in position of employer re lien or charge

98(1)     For the purpose of this Part, a receiver of the assets or business of an employer stands in the position of the employer with respect to a lien or charge against the property and assets of the employer for wages earned before the appointment of the receiver.

Receiver bound by order against employer

98(2)     Where an order is made against an employer before the appointment of a receiver, the receiver is bound by the order to the extent that it constitutes a lien and charge on the property and assets of the employer.

Receiver liable for wages as an employer

98(3)     Where an employee of a business performs work for the business after the appointment of a receiver, the receiver is liable as an employer for payment of the employee's wages.

Order to receiver

98(4)     For the purpose of subsection (3), an officer may make an order under subsection 96(1) in respect of wages that are due and payable to an employee, and the order shall be directed to the receiver.

DIVISION 5

DIRECTOR'S DEMAND TO THIRD PARTIES

Director may issue a third party demand

99(1)     The director may issue and serve on a third party a demand for the payment of money by the party to the director, in an amount and manner specified in the demand, if the director has reason to believe that

(a) an employer has failed to pay wages to an employee in the amount specified in the demand; and

(b) the party will or could, within six months, become indebted to the employer for an amount of money or is about to pay money to the employer.

Third party reply to demand

99(2)     A third party served with a demand shall immediately,

(a) in the circumstances referred to in clause (1)(b), pay the money or the amount specified in the demand, whichever is less, to the director;

(b) if the party is not indebted to the employer and will not or is not likely to become indebted or pay money to the employer, file a reply to that effect with the director; and

(c) if the party is not indebted to the employer, but indebtedness will or could arise at a future date or a payment will or could be made to the employer, file a reply to that effect with the director.

Demand in force for six months

99(3)     A demand issued by the director under subsection (1) remains in force for six months after the date of service.

Third party is liable to the director

99(4)     A third party served with a demand is liable to the director for the amount specified in it or the amount of any indebtedness of the party to the employer, whichever is less, until

(a) the employer pays the unpaid wages;

(b) the party pays the amount specified in the demand or the amount of the indebtedness, whichever is less, to the director;

(c) the director in writing revokes or withdraws the demand or provides the party with a release; or

(d) the demand is no longer in force.

Director may approve deductions by third party

99(5)     Subject to the written approval of the director, a third party may deduct from a payment to be made by the party under a director's demand, an amount that the employer owes to the party.

Director may take civil action against third party

99(6)     The director may recover the amount specified in a demand by civil action against a third party, and the party may raise any defence that could be raised if the employer took action against the party to recover the amount of the indebtedness.

Director to give receipt and notice of payment

99(7)     The director shall notify the employer of any payment received from a third party on whom a demand has been served and shall issue a receipt to the party, and the receipt is a good and sufficient discharge of the liability of the party to the employer to the extent of the amount shown on the receipt.

DIVISION 6

PRIORITY OF WAGES AND ENFORCEMENT

Employer is deemed to hold wages in trust

100       Despite any other Act, an employer is deemed to hold the wages that are due or accruing due to an employee in trust for the employee, and the employee has a lien and charge on the property and assets of the employer for the amount of the wages, whether or not the amount is kept separate and apart by the employer or the business of the employer is in receivership.

Priority of lien and charge

101       Despite any other Act and subject to sections 102 (priority of prior purchase money security interest) and 106 (priority of real property mortage), a lien and charge under section 100 and subsection 94(2) has priority to a maximum of $2,500., or an amount prescribed, and is payable in priority over any other claim or right in the property or assets of the employer that exists before or after the wages are due and payable, including

(a) any claim or right of the Crown in right of Manitoba; and

(b) any lien, charge, encumbrance, assignment, including an assignment of book debts, debenture or other security of whatever kind of any person, and any security interest, as defined in The Personal Property Security Act.

Priority of certain prior purchase money security interests

102       A lien and charge under section 100 and subsection 94(2) does not take priority over a purchase money security interest that is perfected

(a) before a financing statement is registered under clause 94(1)(c); or

(b) within 15 days after the day the debtor obtains possession of the collateral.

Director may file order in court

103(1)    Subject to subsection (2), the director may file in the court an order for the payment of wages, administrative costs and interest made by an officer or by the board under Division 2 of Part 4 if

(a) in the case of an order of an officer, the time to request a referral to the board expires and no request is made; or

(b) in the case of an order of the board, the time to apply for leave to appeal expires and no application is made or an application is made but not proceeded with.

Order is judgment of court with priority

103(2)    An order filed under subsection (1) is enforceable as a judgment of the court in favour of the director and constitutes a lien and charge on the property and assets of the employer with the priority of a lien and charge under section 101.

Director may register judgment in L.T.O.

104       After filing an order in the court under section 103, the director may obtain a certificate of judgment from the court and register the certificate in a land titles office in accordance with The Real Property Act.

Priority of caveat or notice under Judgments Act

105       A caveat or notice that is registered in a land titles office under clause 94(1)(a) has the priority of a judgment under section 10 (certificate of judgment not to affect land) of The Judgments Act.

Priority of real property mortgage

106       A mortgage that is registered in a land titles office before a caveat or notice is registered under clause 94(1)(a) or a certificate of judgment is registered under section 104 has priority over the caveat, notice and certificate except in respect of any advance made under the mortgage after the caveat, notice or certificate is registered.

Employees to share proceeds in proportion to claims

107(1)    Subject to subsection (2), if two or more employees have a lien or charge on property and assets of the employer that are insufficient to satisfy the liens and charges, each employee shall share the proceeds of the sale of the property and assets in the proportion that his or her lien or charge is to the aggregate of the liens and charges.

Director may direct division of proceeds

107(2)    If the director considers that the sharing of the proceeds of a sale under subsection (1) would not be fair in the circumstances, the director may determine the share of each employee in any manner that the director considers fair.

DIVISION 7

REFERRALS TO THE BOARD

Notice of right to request referral of certain orders

108       An order made under this Part in respect of a complaint relating to unpaid wages shall include or have attached to it a notice of the right of any person named in the order to make a request for a referral of the matter to the board under section 110.

Director may reconsider order before referral

109       The director may reconsider and by order vary or revoke an order made by the director or an officer under this Part at any time before the matter is referred to the board under section 110.

Person named in order may request referral

110(1)    A person named in an order made under this Part in respect of a complaint relating to unpaid wages may, within seven days after the day the order is served on the person or within such further time as the director may allow, request the director to refer the matter to the board and, subject to sections 109 and 111, the director shall refer it to the board.

Referral to be in writing and include reasons

110(2)    A request under subsection (1) must be in writing and must, where practicable, include a summary of the reasons for the request.

Director not required to refer resolved matter

110(3)    Despite subsection (1), the director is not required to refer a matter to the board if the director is satisfied that the matter is resolved after he or she receives the request and before it is referred.

Certain persons to pay deposit

111(1)    A person requesting a referral under section 110 that is not an employee shall, at the time of making the request, deposit with the director an amount equal to any amount of wages that the person is required to pay under the order, or $300. for each employee to whom wages are payable under the order, whichever is less, or such amount as may be prescribed.

Application to board chairperson to reduce deposit

111(2)    The chairperson of the board may, on application by a person that has made a request under section 110, reduce the amount of the deposit where the chairperson is satisfied that

(a) the request for referral is based on reasonable grounds;

(b) the number of employees affected is not less than 20 and the amount of wages in issue is not less than $10,000.; and

(c) payment of the deposit required under subsection (1) would cause undue hardship to the person.

Chairperson not to hear referral

111(3)    The chairperson shall not hear a matter referred to the board under subsection 110(1) if he or she hears an application in respect of the matter under subsection (2).

Receiver may request referral to board

112       Where an officer makes an order against an employer before the appointment of a receiver, the receiver may after the appointment make a request under section 110 for referral or for an extension of time, or both, and if a referral is made and the board makes an order against the employer, the board shall direct the order to the receiver.

DIVISION 8

SECURITY BONDS

Director may require employer to provide bond

113(1)     The director may serve an employer with a request to provide security for the wages of the employees of the employer in the form of a bond in an amount and subject to such terms and conditions as may be prescribed, and the employer shall provide the director with a bond within 10 days after being served with the request.

Director may pay wages from proceeds of bond

113(2)    If an order is made under this Part respecting wages that are due and payable to an employee by an employer that has provided a bond under subsection (1), the director may pay the wages from the proceeds of the bond and shall give the employer written notice of the payment.

Bond proceeds where several employees

113(3)    If the proceeds of a bond provided by an employer are not sufficient to pay the wages of the employees, the proceeds shall be divided among the employees

(a) in the proportion that the unpaid wages of each of them is to the aggregate of the unpaid wages; or

(b) if the director considers that the sharing of the proceeds of a bond under clause (a) would not be fair in the circumstances, in such manner as the director considers fair.

Minister may apply to court for order of prohibition 113(4) If an employer fails to comply with a request under subsection (1), the court may, on application by the minister, issue an order prohibiting the employer from carrying on the business in respect of which the request was made until the employer complies with the request.

DIVISION 9

RECIPROCAL ENFORCEMENT

Designation of reciprocating jurisdictions

114(1)    If satisfied that orders under this Code for the payment of wages are or are about to become enforceable under the law of the government of Canada, another province or a territory of Canada, or the government or a state or territory of the United States, the Lieutenant Governor in Council may by regulation designate the other jurisdiction as a reciprocating jurisdiction for the purpose of enforcing in Manitoba an order, certificate or judgment made under the law of the other jurisdiction that is the equivalent of an order made or issued under this Code for the payment of wages.

Application to director for reciprocal enforcement

114(2)    An official designated by a reciprocating jurisdiction for the purpose may apply to the director for the reciprocal enforcement under this Code of an order, certificate or judgment made or issued under the law of that jurisdiction.

Reciprocal enforcement on filing in court

114(3)    Where, on an application under subsection (2), the director is satisfied that an order, certificate or judgment of the reciprocating jurisdiction is the equivalent of a payment of wages order made under this Code and that wages payable under the order, certificate or judgment remain unpaid, the director shall file a true copy of the order, certificate or judgment in the court and, upon filing, the order, certificate or judgment is enforceable, in respect of the amount of wages that remain unpaid, as an order of the court in favour of the director.

PART 4

ADMINISTRATION

DIVISION 1

DIRECTOR AND OFFICERS

Appointment of Director of Employment Standards

115(1)    The minister shall appoint an individual as the Director of Employment Standards for the purpose of this Code, including the supervision and direction of officers.

Director has powers of officer

115(2)    The director may exercise any power or perform any function or duty of an officer.

Delegation

115(3)    The director may delegate the exercise of any function, power or duty of the director to an officer.

Director has standing before board

115(4)    The director has standing to appear before the board as a party to a matter referred to the board, and may be represented by counsel.

Notice to director re board hearing

115(5)    If the director requests the board to give notice to him or her of any hearing to be conducted by the board in respect of a matter referred to it by the director or an officer, the board shall give notice to the director at the same time as it gives notice to the parties to the matter.

Acting director

116       The minister may appoint an individual as acting director to act in the absence of the director or a vacancy in the position, and the individual appointed has all the powers and duties of the director.

Director's authority to investigate non-compliance

117(1)    The director may on his or her own initiative make any inspection, investigation or inquiry that he or she considers necessary or advisable to determine whether this Code, including an order made under this Code, is being complied with.

Director may take certain action

117(2)    The director may, at any time after commencing an inspection, investigation or inquiry, take any action that the director or an officer may take under Part 3 in respect of a complaint filed under that Part.

Order is enforceable under Part 3

117(3)    Where the director determines that a person is not complying with this Code, the director may make any order that an officer may make under Part 3 and, subject to subsection (4), the order is deemed for the purpose of this Code to be an order made under that Part.

Order not subject to maximum recovery

117(4)    Subsection 96(2) (maximum amount recoverable by employee) does not apply in respect of an order made under subsection (3).

Settlement or compromise by director

118(1)    Despite anything contained in this Code, the director may settle or compromise a difference between an employer and an employee under this Code and receive money from the employer or employee in settlement of the difference.

Discharge of liability of employer

118(2)    When the director pays to an employee any money received on the employee's behalf, the employer is discharged from further liability to the employee with respect to the amount received by the employee.

When director may pay out money received

119       The director shall hold in trust any money received by him or her under this Code on behalf of an employee, employer or any other person, including money received under a demand on a third party or a security bond, a deposit under section 111 or an order by an officer, the board or a court, and shall not pay out the money until

(a) any complaint made under this Code in respect of the subject matter of the demand, bond, deposit or order is determined by an officer, the board or a court and the time allowed to request a referral of the matter to the board or to appeal the order expires without a request being made or an appeal taken; or

(b) the director is satisfied that the matter is settled, compromised or otherwise completed.

Powers of officer

120       An officer has the powers set out in subsections 123(1) and (2) and the powers of an inspector under The Department of Labour Act.

Officer not compellable in civil proceeding

121       An officer is not a compellable witness in a civil action or proceeding with respect to information obtained, or an employment record or other document obtained or made, by the officer in carrying out a power, duty or function under this Code and may not be compelled to produce any such document.

DIVISION 2

THE MANITOBA LABOUR BOARD

Member may act for board

122(1)    Any one member of the board may carry out the functions, powers and duties of the board under this Code.

Powers of board member

122(2)    For the purpose of this Code, each member of the board has the powers of a commissioner under Part V of The Manitoba Evidence Act.

Board not bound by rules of evidence

122(3)    The board may receive information and evidence under oath, affirmation, declaration or otherwise, and is not bound by the rules of law respecting evidence that apply to judicial proceedings.

Procedure

122(4)    The board may make rules of practice and procedure that it considers necessary to govern the conduct of business before it under this Code, but shall give each party to a proceeding an opportunity to present evidence and make representation.

Powers re application, referred order and inquiry

123(1)    The board, or a member of the board designated by the chairperson, or an individual authorized by the board or the chairperson, may, for the purpose of determining an application to the board or an order referred to the board, or holding an inquiry under section 128 or 129, do one or more of the following:

(a) at any reasonable time, enter any premises or other place in which the board, member or individual has reason to believe that an individual is or was employed, to inspect employment records and make copies of them;

(b) by written notice, demand the production of employment records for inspection at a time, date and place specified in the notice;

(c) on giving a receipt for it, remove an employment record, for not more than 48 hours, to make copies of it;

(d) require an employer, employee or any other individual to provide oral or written statements about any matter relating to employment or employment records at a specified time, date and place;

(e) require an individual supplying information or giving an oral or written statement to do so in the form of a written statement under oath, affirmation or declaration;

(f) by written notice, require an employer to post notices, information bulletins or extracts from this Code at locations at the employer's place of business specified in the notice.

Further power re applications and inquiries

123(2)    The board, or a member of the board designated by the chairperson of the board, or an individual authorized by the board or the chairperson may, for the purpose of determining an application to the board or holding an inquiry under section 128 or 129, question an employee during the employee's regular hours of work or otherwise without the employer's being present, to ascertain whether this Code is being complied with.

Power to determine compliance with Code

123(3)    The board, or a member of the board designated by the chairperson of the board, or an individual authorized by the board or the chairperson may make any inspection, investigation or inquiry that is necessary to determine whether this Code is being complied with.

Board and authorized person may administer oath

123(4)    A member of the board or an individual authorized under subsection (1) may administer an oath, affirmation or declaration for the purpose of this Code.

Procedure respecting applications

124       For the purpose of determining an application under this Code, the board may exercise its powers under this Code and conduct such hearings as it considers necessary or advisable.

Procedure respecting referred orders

125(1)    Where an order is referred to the board, the board shall

(a)  give written notice to the parties and carry out such investigations and conduct such hearings as it considers necessary or advisable; and

(b) confirm, vary or revoke the order or set it aside and make a new order.

Parties to referred order

125(2)    When an order is referred to the board, a person named in the order and any other person approved by the board may appear as parties to the proceeding.

Content of board order

125(3)    Where the board by order requires an employer or employee to pay wages, the board shall require the person to pay the wages to the director together with

(a) administrative costs calculated in accordance with subsection 96(1); and

(b) interest on the wages in accordance with section 97.

Payment of money to director under order

125(4)    A person that is required by order of the board to pay money to the director under subsection (3) shall do so immediately or within such time as the order allows, whether or not the order is appealed under section 130.

Calculation of wages re termination of employment

126(1)    Where an order referred to the board relates to the termination of an employment without the notice required under this Code and the board determines that an amount of money is payable by the employer or employee, the board

(a) shall determine the amount of wages the employee would have earned if he or she had worked regular hours in the period for which notice was not given; and

(b) may order payment of that amount or such portion of it as the board considers fair.

Board may authorize deduction by employer

126(2)    When the board by order requires an employee to pay an amount of money to an employer, the board may in the order authorize the employer to deduct that amount from any wages due to the employee from the employer.

Board may determine matter relating to vacation

127       An employer or employee may by written application to the board request the board to determine any matter relating to the employee's annual vacation or vacation allowance, and the board may by order determine any such matter, including

(a) the date on which the employee becomes entitled to, and may begin, an annual vacation; and

(b) the amount of vacation allowance to which the employee is entitled.

Inquiries respecting certain groups or associations

128(1)    The board may, and when directed by the minister shall, hold an inquiry to investigate the facts respecting persons engaged or working in connection with a business as members or alleged members of a group or association, or as parties to a scheme of profit sharing, a joint adventure or another form of agreement, including the investigation of any contractual relationship among the persons.

Order of board after inquiry

128(2)    If, after holding an inquiry, the board is of the opinion that a group or association has, or is intended to have, the effect of defeating the purposes of this Code, the board may by order declare that, for the purpose of this Code, specified individuals are employees and specified persons are employers.

Inquiry into matter arising from Code

129       The board may, with the approval of the minister, hold an inquiry respecting any matter arising out of the operation or administration of this Code, and when it does so, it shall report its findings to the minister.

DIVISION 3

APPEAL

Appeal of board order re unpaid wages

130(1)    A person who is a party to a final order of the board made under this Code in respect of a matter referred to the board under section 110 may appeal the order to The Court of Appeal.

Leave to appeal required

130(2     ) An appeal may be taken only on a question of law or jurisdiction and by leave of a judge of The Court of Appeal.

Time for application for leave to appeal

130(3)    An application for leave to appeal shall be made within 30 days after the day the order is made or within such further time as a judge may allow.

Applicant to file proof of payment to director

130(4)    If a person that files an application for leave is not an employee and is required, under the order that is the subject of the application, to pay money to the director, the person shall file with the application evidence that he or she has complied with subsection 125(4).

Board and director entitled to be heard

131       The board and the director are each entitled to be heard, by counsel or otherwise, on the argument of an application for leave to appeal and on an appeal.

Costs

132       Costs may not be ordered against the director, an officer, the board or a member or employee of the board in respect of an application for leave to appeal or an appeal.

PART 5

GENERAL

DIVISION 1

PROHIBITION AGAINST UNFAIR EMPLOYMENT PRACTICES

No termination or other discriminatory action

133(1)    No employer or other person acting on behalf of an employer may suspend, terminate or restrict or threaten to suspend, terminate or restrict the employment of an employee, or lay off or threaten to lay off an employee, or otherwise discriminate against an employee

(a) because garnishment proceedings are taken or might be taken against the employee;

(b) because the employee files or might file a complaint under this Code or assists in the initiation of a complaint, prosecution or other proceeding under this Code;

(c) because the employee requests or receives information or advice from an officer or requests or demands anything that the employee is entitled to under this Code;

(d) because the employee gives or might give information or evidence in respect of an investigation, prosecution or other proceeding under this Code;

(e) because the employee makes or might make a statement or disclosure that may be required of the employee under this Code; or

(f) because the employee refuses to work or attempts to refuse to work on a Sunday, if he or she is permitted to refuse under section 81.

Application of The Labour Relations Act

133(2)    Sections 30 and 31 of The Labour Relations Act apply with necessary modifications to a complaint made in respect of this section.

DIVISION 2

SINGLE EMPLOYER DECLARATION

Determination of single employer by order

134(1)    Where the director or board determines that associated or related businesses are carried on or have been carried on under common control or direction by or through two or more employers, the director or board may by order declare that the employers named in the order are a single employer for the purpose of this Code.

Effect of single employer order

134(2)    Employers that are declared to be a single employer are jointly and severally liable for the payment of wages to all employees of the employers.

DIVISION 3

EMPLOYMENT RECORDS

Employment records to be kept by employer

135(1)    An employer shall keep and maintain at the principal place of business of the employer in the province records of the following information, in English or French, about each employee:

(a) name, address, date of birth and occupation;

(b) the date on which the employment commenced;

(c) the regular wage rate and overtime wage rate when employment starts, the particulars of any change to the regular wage rate or overtime wage rate, including the date of the change;

(d) subject to subsection (2), the regular hours of work and overtime, recorded separately and daily;

(e) the dates on which wages are paid, and the amount of wages paid on each date;

(f) the deductions from wages and the reason for each deduction;

(g) time off that is provided and taken instead of overtime wages;

(h) the date on which each general holiday is taken;

(i) the wage rate paid for work performed or for hours on duty on a general holiday;

(j) each annual vacation, showing the date it begins and the date that work resumes, the period of employment in which it is earned, and the date and amount of vacation allowance paid;

(k) the amount of vacation allowance paid to the employee in lieu of an annual vacation upon termination of the employment and the date of the payment;

(l) copies of documents relating to maternity leave, parental leave or other leave, including the dates and number of days taken as leave;

(m) the date of termination of the employment;

(n) any other record prescribed by regulation.

Record required for wage paid by week or month

135(2)    An employer that pays an employee by the week or month may keep a record of the standard hours of work and a daily record of overtime rather than of the employee's regular hours of work.

Records to be kept for minimum periods

135(3)    Subject to any longer or shorter periods of time prescribed by regulation, an employer shall retain the employment records referred to in subsection (1) for not less than three years after the record is made.

Employer to provide employee with pay statement 135(4) Subject to subsection (5), at the end of each pay period, the employer shall provide a written statement to each employee setting out

(a) the regular hours of work and overtime for which wages are being paid to the employee, and the applicable wage rates;

(b) deductions from the wages of the employee and the reason for each deduction; and

(c) the net amount of wages paid to the employee.

Exception where wage payments are equal

135(5)    If the amount of wages to be paid to an employee is to be equal on each date that wages are to be paid over a period of time, the employer may, instead of providing the statements required under subsection (4), at the beginning of the period provide the employee with a statement of the wages to be paid, the wage rate, deductions from the wages, and the net amount to be paid to the employee on each of the dates over the period.

Records to be produced on request

135(6)    An employer and any other person having custody or control of employment records shall, on the request of an officer, produce them for inspection and shall, on the request of an officer, provide copies of them.

Officer may determine amount if record incomplete

135(7)    If an officer is unable to determine the amount of wages that are due and payable to an employee because the employer has not kept or maintained complete and accurate employment records or fails to make the records available to the officer for inspection, the officer may determine the amount in a reasonable and appropriate manner, and shall include in his or her considerations the past practices of the employer.

DIVISION 4

SERVICE OF DOCUMENTS

Service of documents

136(1)    Where an order or any other document is required or permitted to be given, sent or served under this Code, service may, in addition to any other method of service prescribed by regulation, be effected as follows:

(a) in the case of service on an individual,

(i) personally or by being left for the individual at his or her last or most usual place of abode with an individual who appears to be at least 18 years old, or

(ii) by being sent to the individual at his or her residence, place of business or last known postal address by a mail service that provides the sender with an acknowledgment of receipt;

(b) in the case of service on a corporation,

(i) personally on a director or officer of the corporation, a barrister or solicitor that represents the corporation, or the manager or another individual in charge of a place where the corporation carries on business,

(ii) by being left with an individual who appears to be at least 18 years old at, or by being sent by a mail service that provides the sender with an acknowledgment of receipt to, the registered head office of the corporation or the office of a barrister or solicitor that represents the corporation, or

(iii) by being sent to a director of the corporation at the director's residence or last known postal address by a mail service that provides the sender with an acknowledgment of receipt;

(c) in the case of service on a partnership,

(i) personally or by a mail service that provides the sender with an acknowledgment of receipt on any one or more of the partners, or an individual having, at the time of service, control or management of the partnership business at the principal place of business of the partnership, or

(ii) by being sent to at least one of the partners at his or her residence or last known postal address by a mail service that provides the sender with an acknowledgment of receipt.

Proof of service

136(2)    When it is necessary to prove the service of a document in a proceeding or prosecution under this Code,

(a) if service is effected personally, the date on which it is served is the date of service;

(b) if service is effected by a mail service that provides the sender with an acknowledgment of receipt, service of it is deemed to occur on

(i) the date of receipt, or

(ii) where proof of service is received without evidence of the date received, seven days after the date of mailing; or

(c) if service is effected by leaving it with an individual under subclause (1)(a)(i), (b)(ii) or (c)(i), service of it is deemed to occur on the date it was so left.

Director or board may give directions for service

136(3)    Despite subsections (1) and (2), the director or the board may direct that a document be served in a manner that is not described in subsection (1), in which case the service is deemed to occur seven days after the manner of service is carried out or after such longer period as the director or board may direct.

DIVISION 5

ADMISSIBILITY OF DOCUMENTS

Admissibility of certain documents as evidence

137       In a proceeding or prosecution under this Code, each of the following documents is admissible in evidence without proof of the appointment, authority or signature of the individual signing it:

(a) a copy of an order or other document certified by an officer or the board to be a true copy;

(b) a copy of an employment record or other document or an extract of an employment record certified to be a true copy by an officer or the board;

(c) a certificate of the director or the board that an employee or employer has failed to comply with an order.

DIVISION 6

IMMUNITY

Immunity from action

138       No action or proceeding may be commenced against the board, a board member, the director, an officer, or an employee or agent of the board or the government for any act done in good faith in the performance of a duty or in the exercise or intended exercise of a power under this Code, or for any neglect or default in the performance of the duty or the exercise of the power in good faith.

PART 6

OFFENCES AND PENALTIES

Offences

139(1)    A person is guilty of an offence who

(a) fails to comply with an order made or the terms and conditions of a permit issued under this Code;

(b) delays or obstructs the director or an officer carrying out a power or duty under this Code;

(c) makes a complaint knowing it to be untrue;

(d) fails to comply with subsection 60(1) (termination) or (2) (reinstatement);

(e) fails to give notice of termination as required under Division 10 of Part 2;

(f) as an employer, alters working conditions or wages in contravention of section 76;

(g) contravenes section 133 (unfair employment practices);

(h) as a parent, guardian or other person having the care, custody, control or charge of a child, permits the child to be employed in contravention of this Code;

(i) employs a child in contravention of subsection 83(2), contravenes the terms and conditions in a permit issued in respect of a child, or contravenes subsection 83(4) (prohibition respecting certain employment);

(j) fails to comply with a third party demand under Division 5 of Part 3;

(k) fails to comply with a request for a security bond under Division 8 of Part 3;

(l) as an employer, fails to keep employment records as required by this Code, or to produce employment records when requested to do so by an officer;

(m) falsifies an employment record or gives false or misleading information respecting an employment record;

(n) as an employer, fails to pay wages or overtime wages to an employee or to provide anything to which an employee is entitled under this Code; or

(o) fails to comply with a regulation made under clause 144(1)(c) (terms and conditions of employment), (s) (employment of children) or (t) (employment of disabled persons).

Offence of working for less than minimum wage

139(2)    If an employee, in collusion with an employer, works for less than the prescribed minimum wage, both the employer and the employee are guilty of an offence.

Offence of paying less than minimum wage

139(3)    If an employee, in collusion with an employer, directly or indirectly returns to the employer all or part of the employee's wages with the result that the wages received and retained by the employee are reduced to an amount that is less than the prescribed minimum wage, both the employee and the employer are guilty of an offence.

Continuing offence

139(4)    Where a contravention or failure to comply continues for more than one day, the person is guilty of a separate offence for each day that the offence continues.

Penalties

140(1)    A person that is guilty of an offence under this Code is liable on summary conviction to a fine

(a) in the case of an employer that is a corporation, of not more than $25,000.;

(b) in the case of a director of a corporation or an employer that is an individual, of not more than $5,000.; and

(c) in the case of an employee, of not more than $2,500.

Penalties for subsequent offences

140(2)    A person guilty of an offence under this Code for a second or subsequent time is liable, in addition to the penalty under subsection (1), to

(a) a fine of not more than the maximum fine that applies under subsection (1); or

(b) imprisonment for a term of not more than three months;

or both.

Offences by directors of corporations

141       When a corporation commits an offence under this Code, every director of the corporation who directed, authorized, assented to, permitted, or participated or acquiesced in the offence is also guilty of the offence, whether or not the corporation has been prosecuted or convicted.

Time limit for prosecution

142       A prosecution for an offence under this Code may be commenced within one year after the date the alleged offence occurs.

Director and board to be served notice of appeal

143       A person who appeals a conviction under this Part shall serve the director and the board with a copy of the notice of appeal within the time that the court requires the notice to be served on parties to the appeal.

PART 7 REGULATIONS

Regulations

144(1)    The Lieutenant Governor in Council may make regulations

(a) exempting an employer, employee, employment or business, or a group or class of employers, employees, employments or businesses from the application of this Code or a provision of this Code;

(b) respecting terms and conditions of employment for an employer, employee, employment or business or a group or class of employers, employees, employments or businesses that are exempted from the application of this Code or a provision of this Code;

(c) respecting terms and conditions of employment for employees in a class of business or employment;

(d) for the purpose of Division 1 (minimum wage) of Part 2, respecting one or more minimum wages to be paid by employers to employees or a class of employees;

(e) respecting the maximum amount employers may charge or may deduct from a prescribed minimum wage for providing board, lodging, uniforms or laundry services or other services to employees;

(f) respecting the conditions of employment for employees earning the prescribed minimum wage;

(g) respecting the conduct of inquiries under section 8 (minimum wage board), 128 or 129 (Manitoba Labour Board);

(h) respecting circumstances that constitute or do not constitute the performance of work by employees for which wages are required to be paid;

(i) for the purpose of Division 2 (hours of work) of Part 2, respecting the standard hours of work for a business or employment or a class of businesses, employers or employments;

(j) respecting the manner in which the hours worked by employees are recorded, including the use of mechanical and electronic devices;

(k) for the purpose of clause 18(1)(b), respecting the period of time within which an employee in a business or a class of businesses must take time off instead of overtime wages;

(l) for the purpose of clause 21(h), designating a day as a general holiday;

(m) for the purpose of section 33, respecting the entitlement of employees earning the prescribed minimum wage to wages for general holidays;

(n) for the purpose of subsection 39(4), respecting the calculation of the cash value of board and lodging;

(o) for the purpose of subsection 50(2), respecting the length of breaks to be provided to employees by employers;

(p) respecting deductions, including set offs, that employers may make from wages payable to employees;

(q) respecting the circumstances that constitute or are deemed to constitute a lay-off, including, for the purpose of section 78, the circumstances in which a lay-off is not deemed to terminate the employment of the employee;

(r) for the purpose of Division 11 (home work) of Part 2, respecting home work, including the registration of employers of individuals who engage in home work, and employment records required to be kept for such individuals;

(s) for the purpose of section 83, prohibiting or regulating the employment of children on the basis of their age, the nature of the employment, or other circumstances and authorizing the director to approve exceptions and to impose terms and conditions on the employment;

(t) respecting the employment of disabled persons, including wages and terms and conditions to which a permit issued under section 85 may be made subject;

(u) respecting the application of section 90 to directors of corporations;

(v) for the purpose of section 97 (interest), respecting the payment of interest, including rates of interest and periods of time and circumstances in which interest is or is not payable;

(w) respecting the maximum amount of wages having a priority under section 101 (lien and charge for wages);

(x) respecting deposits payable under section 111;

(y) for the purpose of section 113, respecting security bonds, including the amounts required and terms and conditions to be contained in them;

(z) for the purpose of section 114, respecting applications for the reciprocal enforcement of orders, certificates or judgments;

(aa) for the purpose of subsection 114(1), respecting the designation of reciprocating jurisdictions;

(bb) for the purpose of section 135, respecting employment records to be kept and maintained by employers and the minimum periods of time for which records must be kept;

(cc) respecting the production of employment records by an employer or employee;

(dd) respecting information to be made available by an employer on the request of an officer or the board;

(ee) for the purpose of section 136, respecting the service of documents;

(ff) respecting the filing of complaints;

(gg) respecting applications to the director or the board;

(hh) respecting the powers and duties of the board, director and officers;

(ii) respecting the inspection of businesses;

(jj) respecting fees and charges for any matter or thing done by the director, an officer or the board, including who may establish the fees and charges, who is liable to pay the fees and charges, and the manner in which the payment of fees and charges may be enforced;

(kk) respecting the content of notices required under this Code;

(ll) respecting any matter required or authorized by this Code to be prescribed;

(mm) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the intent and purpose of this Code.

Regulations re standard hours of work

144(2)    A regulation under clause (1)(i) may set standard hours of work that apply for all or part of a year.

Application

144(3)    A regulation may be of particular or general application, may be applicable at particular times or in particular circumstances, may be subject to conditions, and may delegate to or impose on the board or director functions, powers or duties.

Consultations re proposed regulations

144(4)     Except in circumstances considered by the minister to be of an emergency nature, the minister shall provide opportunity for consultation with, and seek advice and recommendations from, representatives of employers and employees and any other persons the minister considers appropriate in respect of each proposed regulation.

PART 8

TRANSITIONAL, CONSEQUENTIAL, REPEAL, C.C.S.M. REFERENCE, AND COMING INTO FORCE

TRANSITIONAL PROVISIONS

Meaning of "former Acts"

145       In this section and sections 146 to 153, "former Acts" means

(a)  The Employment Standards Act, R.S.M. 1987, c. E110;

(b)  The Payment of Wages Act; R.S.M. 1987, c. P31; and

(c)  The Vacations with Pay Act, R.S.M. 1987, c. V20.

Transitional regulations

146       The Lieutenant Governor in Council may make regulations

(a) respecting the transition or conversion to this Code of anything from the former Acts or an Act amended by this Code;

(b) to deal with any difficulty or impossibility resulting from this Code or the transition to this Code from the former Acts or any Act amended by this Code.

Continuation of documents under former Acts

147(1)     An order, demand, approval, permit, caveat, lien, judgment, certificate or other document issued, filed, registered or made under the former Acts or under an Act that is amended by this Code continues as if it had been issued, filed, registered or made under this Code.

Caveat filed in L.T.O. under Payment of Wages Act

147(2)     A caveat filed in a land titles office by the director on behalf of an employee under The Payment of Wages Act is deemed for all purposes to have been filed by the director under this Code.

Minimum wage boards continued

148        A minimum wage board established under The Employment Standards Act, R.S.M. 1987, c. E110, and in existence at the time this Code comes into force is continued as if established under this Code.

Appointments continued

149        An appointment made under any of the former Acts is continued as an appointment under this Code.

Matters under former Acts continued

150       A claim, proceeding, prosecution or other matter under a former Act is to be continued to its conclusion under the former Act as if this Code had not come into force and the former Act and regulations under it had remained in force.

Application to benefit earned after Code in force

151(1)     Subject to subsection (2), this Code applies only to wages and other benefits earned or to which an employee is entitled after this Code comes into force.

Application to benefit earned in period occurring before and after Code in force

151(2)    This Code applies to wages and other benefits that are earned or claimed to be earned with respect to a continuous period of time that starts before and ends after this Code comes into force.

Vacation entitlement under Vacations with Pay Act continued

152        Despite subsection 34(1), an employee who, immediately before this Code comes into force, is entitled to an annual vacation of three weeks under section 5 of The Vacations with Pay Act

(a) continues to be entitled to an annual vacation of three weeks for each year of employment with the employer after the coming into force of this Code; and

(b) is entitled, on termination of the employment, to the vacation allowance provided under clause 44(2)(b).

Payment of interest on wages payable

153       Interest is payable on wages that are due and payable on the day this Code comes into force but only from that date and in accordance with the regulations.

Reference in legislation or document to former Act

154        A reference in an Act, regulation, by-law, agreement or other document to a former Act is deemed to be a reference to this Code.

CONSEQUENTIAL AMENDMENTS

C.C.S.M. c. C190 amended

155        Section 19 of The Construction Industry Wages Act is amended

(a) by repealing the section heading and substituting "Service of documents"; and

(b) by striking out "Section 11 of The Employment Standards Act" and substituting "Section 136 of The Employment Standards Code".

C.C.S.M. c. C301 amended

156(1)     The Credit Unions and Caisses Populaires Act is amended by this section.

156(2)    Subsection 88(3) is amended

(a) in the English version, by striking out "committee,"and substituting "committee";

(b) by striking out "or pursuant to The Payment of Wages Act" and substituting ", or a director or member of a committee who satisfies a judgment rendered under The Employment Standards Code,"; and

(c) by striking out "or The Payment of Wages Act" and substituting "or The Employment Standards Code".

156(3)    Section 89 is repealed and the following is substituted:

Application of The Employment Standards Code

89        Part 3 of The Employment Standards Code applies to credit unions and their directors.

C.C.S.M. c. P13 amended

157       Subsection 4(2) of The Pay Equity Act is amended by striking out "sections 39 to 43 of The Employment Standards Act" and substituting "section 82 of The Employment Standards Code".

Consequential amendment, C.C.S.M. c. P215

158       Subsection 111(2) of The Manitoba Public Insurance Corporation Act is amended

(a) in the section heading, by striking out "Act" and substituting "Code";

(b) in clause (a), by striking out "Part II of The Employment Standards Act" and substituting "The Employment Standards Code"; and

(c) in clause (b), by striking out "subsection 32(1) of that Act" and substituting "Division 2 (hours of work) of Part 2 of that Code".

Consequential amendment, C.C.S.M. c. R30

159       Subsection 136(3) of The Real Property Act is amended by striking out "Subject to section 7 of The Payment of Wages Act" and substituting "Subject to sections 94, 101, 102, 104 to 107 and 117 and subsection 103(2) of The Employment Standards Code".

Consequential amendment, C.C.S.M. c. R80

160(1)    The Remembrance Day Act is amended by this section.

160(2)    Section 3.3 is amended by striking out "sections 41.1 and 41.2 of The Employment Standards Act and subsection 21(1.1) of The Payment of Wages Act" and substituting "sections 81 and 133 of The Employment Standards Code".

160(3)    Subsection 3.4(1) is amended by striking out "subsections 35(4), (11), (12) and (16) of The Employment Standards Act" and substituting "sections 22, 25 to 28 and 33 of The Employment Standards Code".

160(4)     Subsection 3.4(2) is amended by striking out "The Employment Standards Act" and substituting "The Employment Standards Code".

C.C.S.M. c. S230 amended

161       Clause 23.3(3)(a) of The Summary Convictions Act is amended by striking out "subsection 7(1) of The Payment of Wages Act" and substituting "section 101 of The Employment Standards Code".

Consequential amendment, C.C.S.M. c. T60

162       Subsections 10(2) and 11(2) of The Threshers' Liens Act are amended by striking out "The Wages Recovery Act" wherever it occurs and substituting "The Employment Standards Code".

MISCELLANEOUS PROVISIONS

Repeal

163       The following Acts are repealed:

(a) The Employment Standards Act, R.S.M. 1987, c. E110;

(b) The Payment of Wages Act; R.S.M. 1987, c. P31;

(c) The Vacations with Pay Act, R.S.M. 1987, c. V20.

C.C.S.M. reference

164       This Code may be cited as The Employment Standards Code and referred to as chapter E110 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

165       This Code comes into force on a day fixed by proclamation.