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The Employment Standards Code Amendment Act

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S.M. 2006, c. 26

Bill 2, 5th Session, 38th Legislature

The Employment Standards Code Amendment Act

(Assented to December 7, 2006)

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

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

1           The Employment Standards Code is amended by this Act.

2(1)        Subsection 1(1) is amended

(a) by repealing the definitions "agreement" and "regular wage";

(b) by replacing the definitions "general holiday", "overtime", "overtime wage", "overtime wage rate", "pay period", and "regular wage rate" with the following:

"general holiday" means a day that is a general holiday under Division 4 of Part 2; (« jour férié »)

"overtime" means an employee's hours of work in excess of the employee's standard hours of work established under

(a) The Construction Industry Wages Act, if that Act applies in determining the employee's standard hours of work, or

(b) Division 2 of Part 2, if that Division applies in determining the employee's standard hours of work; (« heures supplémentaires »)

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

"overtime wage rate" means the hourly rate for overtime determined in accordance with subsection 17(1); (« taux de rémunération des heures supplémentaires »)

"pay period" means a regularly recurring period established by an employer in accordance with this Code for calculating and paying the wages payable to employees; (« période de paye »)

"regular wage rate" of an employee means an hourly rate equal to

(a) the employee's hourly rate for regular hours of work, if the employee's wage for regular hours of work in a pay period is the hourly rate multiplied by the regular hours of work worked by the employee in the pay period,

(b) the employee's weekly or bi-weekly wage for regular hours of work, divided by the regular hours of work in the pay period, if the employee's wage for regular hours of work is a fixed amount per weekly or bi-weekly pay period, as the case may be,

(c) the employee's semi-monthly wage for regular hours of work, multiplied by 24 and divided by the product of 52 times the employee's regular hours of work per week, if the employee's wage for regular hours of work is a fixed amount per semi-monthly pay period,

(d) the employee's monthly wage for regular hours of work, multiplied by 12 and divided by the product of 52 times the employee's regular hours of work per week, if the employee's wage for regular hours of work is a fixed amount per monthly pay period, and

(e) in any other case, the hourly rate determined under the regulations or by an employment standards officer; (« taux normal »)

(c) in the English version of the definition "standard hours of work", by striking out "(hours of work)" and substituting "(standard hours of work)"; and

(d) in the part of the definition "wage" before clause (a), by striking out "due and" and substituting "paid or".

2(2)        Subsection 1(3) is repealed.

3(1)        Subsection 2(1) is amended by striking out "Subject to subsection (3)," and substituting "Except as otherwise provided in this Code,".

3(2)        Subsection 2(3) is replaced with the following:

No application to independent contractor

2(3)        For greater certainty, this Code does not apply to an independent contractor.

Exemption — standard hours of work and overtime

2(4)        Division 2 (standard hours of work) and Division 3 (overtime) of Part 2 do not apply to any of the following:

(a) an employee who performs management functions primarily;

(b) an employee who has substantial control over his or her hours of work and whose annual regular wage is at least two times the Manitoba industrial average wage, as defined by regulation.

Application to agricultural workers

2(5)        Except as otherwise provided in the regulations, this Code applies to persons employed in agriculture.

4           Section 4 is replaced with the following:

Agreement to work for lower standard is no defence

4(1)        An agreement to work for less than the applicable minimum wage, or under any term or condition that is contrary to this Code or less beneficial to the employee than what is required by this Code, is not a defence in a proceeding or prosecution under this Code, even if the terms and conditions of the agreement, as a whole, are better for the employee than what is required by this Code.

Terms or conditions of employment may be enforced

4(2)        If an employer provides or agrees to a term or condition of employment that satisfies a requirement of this Code, that term or condition may be enforced under this Code even if it provides a greater benefit to the employee than the minimum required by this Code.

5           Section 5 is amended by striking out "Divisions 4, 5 and 9" and substituting "Divisions 2 to 5, 9 and 10".

6           The heading for Division 2 of Part 2 is replaced with "STANDARD HOURS OF WORK".

7           Section 10 is replaced with the following:

Standard hours of work

10          The standard hours of work for an employee are

(a) 40 hours per week, or any greater number of hours per week prescribed by regulation or permitted by the director under section 13; and

(b) eight hours per day, or any greater number of hours per day

(i) provided for in a collective agreement that applies to the employee, or

(ii) prescribed by regulation or permitted by the director under section 13, if no collective agreement applies to the employee.

8           Section 11 is repealed.

9           Sections 12 to 14 are replaced with the following:

Averaging

12(1)       An employer may determine an employee's standard hours of work for a specified period in accordance with subsection (2) if

(a) the employer is authorized to do so for that specified period

(i) by a collective agreement, or

(ii) in the absence of a collective agreement, by a permit issued by the director on application by the employer; and

(b) the employee's weekly standard hours of work would otherwise be not more than 40 hours.

Effect of averaging

12(2)       If this subsection applies in determining an employee's standard hours of work for a specified period,

(a) section 10 does not apply to the employee; and

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

Standard hours = W × H

In this formula,

W

is the number of weeks in the specified period;

H

is 40 or, if the average number of regular hours of work per week during the specified period as authorized by the collective agreement or the director's permit, as the case may be, is less than 40, that lesser number.

Director may authorize increased standard hours

13          Subject to the regulations, the director may, on application by an employer, issue a permit authorizing the employer to increase the standard hours of work as the director considers fair and reasonable.

Terms and conditions of permit

14(1)       A permit under section 12 or 13 may be limited to one or more workplaces or classes of employees of the employer, and may include any terms or conditions the director considers appropriate.

Term of permit

14(2)       Unless it is revoked, the permit is valid for three years or any shorter period specified in the permit.

Factors to be considered

14(3)       Before issuing the permit, the director must consider the following:

(a) any industry customs or practices for the type of employment in question;

(b) any representation made by or on behalf of a majority of the employees who would be affected by the permit;

(c) any effect the permit could have on the safety, health or welfare of the public or the employees who would be affected by the permit;

(d) any relevant history of compliance or non-compliance with this Code;

(e) any other factors prescribed by regulation.

Director may amend or revoke permit

14(4)       The director may, by written notice to the employer, amend or revoke the permit at any time before it expires.

Employer to post permit

14(5)       While the permit remains in effect, the employer must keep it posted at the employer's premises where it can be seen by the affected employees.

10          Sections 15 and 16 are repealed.

11          Subsection 17(1) is replaced with the following:

Overtime to be paid at overtime wage rate

17(1)       Subject to section 18 and the regulations, an employer must pay an employee a wage for overtime at an hourly rate that is not less than 150% of the employee's regular wage rate.

12          Sections 18 and 19 are replaced with the following:

"Banked time" defined

18(1)       In this section, "banked time" means time that an employer is to provide to an employee as time off with pay under this section in lieu of wages for overtime.

Agreement for paid time off in lieu of overtime pay

18(2)       If a collective agreement or a written agreement between an employer and employee so provides, the employer may credit the employee with banked time in lieu of wages for some or all of the employee's overtime.

Rate of time off

18(3)       The amount of banked time credited by the employer must not be less than 150% of the overtime for which the employee is to receive time off with pay in lieu of wages for overtime.

When banked time off to be provided

18(4)       The time off to be provided in respect of banked time must be provided during the employee's regular hours of work within

(a) three months after the end of the pay period in which the overtime giving rise to the banked time occurred; or

(b) any longer period prescribed by regulation or approved by the director.

Regular wage rate applies to time off

18(5)       For each hour or part of an hour of time off in respect of banked time, the employer must pay the regular wage rate that applies to the employee's regular hours of work during the pay period in which the time off occurs.

Effect of time off

18(6)       For the purpose of this Code, the hours of time off in respect of banked time are deemed to be regular hours of work.

Wage payable for banked time not taken

18(7)       The employer must pay the employee a wage in accordance with section 86 (wages to be paid within certain time), at the regular wage rate, for any banked time

(a) that the employee has remaining when his or her employment terminates; or

(b) for which the employee did not receive time off with pay by the end of the period within which it was to have been provided under subsection (4).

No implied right to require overtime

19(1)       An employer's management rights do not include an implied right to require an employee to work overtime.

Employer may require overtime in emergency

19(2)       An employer may require an employee to work overtime in the following circumstances, but only for so long as they continue to exist:

(a) where it is urgently required because of a present or imminent situation or condition that requires prompt action to avoid or limit

(i) loss of life,

(ii) harm to an individual's health or a threat to an individual's safety, or

(iii) a serious interference with the ordinary operation of the employer's business;

(b) where it is urgently required because of a present or imminent situation or condition that is interrupting 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, or

(ii) the provision of municipal services or health services;

(c) where it is urgently required by or under an Act of the Legislature in relation to an existing or threatened disaster or emergency.

13          Section 20 is repealed.

14          Division 4 of Part 2 is replaced with the following:

DIVISION 4

GENERAL HOLIDAYS

Definitions

21(1)       The following definitions apply in this Division.

"day off", in relation to a general holiday, means

(a) the day of the holiday, if the holiday falls on a day that would normally be a workday for the employee and the employee does not work that day; or

(b) another day that the employee is given off under subsection 25(2) or 26(2). (« jour de congé »)

"eligible employee" means an employee who is eligible under section 22 for holiday pay. (« employé admissible »)

"general holiday" means any of the following days:

(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. (« jour férié »)

"holiday pay" means the wage payable by an employer to an eligible employee for a general holiday or for a day off in relation to a general holiday. (« indemnité de jour férié »)

Day off in addition to annual vacation

21(2)       A day off in relation to a general holiday is to be given in addition to an employee's annual vacation.

Eligibility for holiday pay

22(1)       An employee is eligible for holiday pay in relation to a general holiday unless

(a) the employee is absent on his or her first scheduled workday before or after the holiday without the employer's consent; or

(b) the holiday falls on a day that would normally be a workday for the employee, and the employee

(i) is required or scheduled to work on the holiday, and

(ii) is absent on that day without the employer's consent.

Employer's consent to employee's absence

22(2)       For the purpose of subsection (1), an employer is deemed to have consented to the absence of an employee if the employee is absent

(a) on a leave to which he or she is entitled or which he or she has been given by the employer; or

(b) because he or she is ill.

Amount of holiday pay

23(1)       An eligible employee's holiday pay in relation to a general holiday must not be less than the employee's wage for regular hours of work on a normal workday in the pay period

(a) in which the employee receives a day off in relation to the holiday; or

(b) in which the holiday occurs, if the employee does not receive a day off.

Employee with varying wages

23(2)       Despite subsection (1), an eligible employee's holiday pay in relation to a general holiday is 5% of the employee's total wages, excluding overtime wages, for the four-week period immediately preceding the holiday, if the employee's wage for regular hours of work on a normal workday cannot be determined because

(a) the number of hours worked in a normal workday varies from day to day; or

(b) the employee's wage for regular hours of work varies from pay period to pay period.

Determining overtime for pay period that includes day off

24          For the purpose of determining an eligible employee's overtime under Division 3 for a pay period in which the employee was given a day off in respect of a general holiday, the employee is deemed to have worked the regular hours of work that he or she would normally have worked on that day off.

Employee works on general holiday

25(1)       Subject to subsection (2), an employee who works on a general holiday is entitled to be paid

(a) for the hours worked, at the overtime wage rate; and

(b) holiday pay for that day.

Exception — employment in certain businesses

25(2)       If the employee works in a continuously operating business, seasonal business, place of amusement, gasoline service station, hospital, hotel or restaurant, or in domestic service, the employer may, instead of complying with subsection (1),

(a) pay the employee for the hours worked on the general holiday as if it were not a general holiday; and

(b) give the employee a day off, with holiday pay, on another day that would normally have been a workday for the employee,

(i) within 30 days after the general holiday, with at least two days' notice of the day to be taken off, or

(ii) if the employee agrees, within any longer period but before the employee's next annual vacation.

Definitions

25(3)       The following definitions apply in subsection (2).

"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 at 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. (« entreprise saisonnière »)

Holiday pay for day off

26(1)       An eligible employee is entitled to holiday pay for a day off in relation to a general holiday.

Day off for general holiday not falling on workday

26(2)       If the general holiday falls on a day that would not normally be a workday for the employee,

(a) subject to clause (b), the employer must give the employee a day off, with holiday pay, on a day that would normally be a workday for the employee,

(i) before the employee's next annual vacation, or

(ii) at any later time agreed to by the employee; and

(b) if the general holiday falls on a Saturday or Sunday, the employer must give the employee a day off, with holiday pay, on the employee's first workday after the holiday.

Employment terminated before day off

27          If an eligible employee's employment is terminated before the day off to be given under subsection 25(2) or 26(2) is taken, the employer must pay the holiday pay, along with any other wages payable on termination, in accordance with section 86 (wages to be paid within certain time).

Substitution of other day for general holiday

28(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;

and the substituted day is within 12 months of the general holiday.

Substituted day is deemed general holiday

28(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

28(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).

Former employee's entitlement

29(1)       If an employee's employment is terminated, other than by the employee, less than four weeks before a general holiday,

(a) the employee is entitled to holiday pay for that holiday equal to 5% of his or her total wages, excluding overtime wages, for the four-week period immediately preceding the holiday; and

(b) the holiday pay is payable in accordance with section 86 (wages to be paid within certain time).

Portion of wage in lieu of notice

29(2)       For the purpose of clause (1)(a), the employee's total wages for the four-week period includes the portion of the wage in lieu of notice payable under clause 61(1)(b), if any, that would have been payable as a wage if the employee had remained employed and worked his or her regular hours of work throughout the applicable notice period.

Construction employees

30          If an employee is employed in construction,

(a) the employer must pay the employee the overtime wage rate for any hours worked on a general holiday;

(b) before the end of each year or on termination of the employment, whichever occurs first, the employer must pay the employee, as holiday pay for all general holidays in the year, an amount equal to 4% of the employee's wages for the year, other than overtime wages, whether or not the employee works on any of the holidays; and

(c) subsection 21(2) and sections 22 to 29 do not apply to the employee.

15          Subsection 39(1) is amended

(a) by replacing clause (b) with the following:

(b) a wage in lieu of notice payable under clause 61(1)(b); or

(b) in clause (c), by striking out "paid in the year of employment".

16          Subsection 44(1) is amended

(a) by replacing clause (b) with the following:

(b) a wage in lieu of notice payable under clause 61(1)(b); or

(b) in clause (c), by striking out "paid in the year of employment".

17          Sections 46 to 48 are amended by striking out "board" wherever it occurs and substituting "director".

18          Section 49 is amended

(a) in the section heading, by striking out "Board" and substituting "Director";

(b) by striking out "board" and substituting "director"; and

(c) by adding "may" before "vary".

19(1)       Clause 50(2)(b) is amended by striking out "board" and substituting "director".

19(2)       Subsection 50(3) is amended

(a) in the section heading, by striking out "Board" and substituting "Director"; and

(b) in the subsection, by striking out "board" and substituting "director".

20          The heading for Division 8 of Part 2 is replaced with "WAGES FOR REPORTING FOR WORK".

21          Section 51 is replaced with the following:

Wage for reporting for work

51(1)       An employee who

(a) reports for work

(i) at the employer's request, or

(ii) when scheduled to work for a period of three hours or more; and

(b) is not required to work or is required to work for less than three hours;

is entitled to be paid

(c) the wage payable for the hours worked, if any; or

(d) the regular wage rate for three hours of work;

whichever is more.

Reporting for less than 3 hours

51(2)       An employee who reports for a scheduled period of less than three hours is entitled to be paid

(a) the wage payable for the hours worked, if any; or

(b) the regular wage rate for the scheduled hours of work;

whichever is more.

Employee working longer than scheduled period

51(3)       If an employee normally works at least three hours when reporting for a scheduled period of less than three hours, the scheduled period is deemed for the purpose of this section to be a period of three hours or more.

22          The heading for Division 9 of Part 2 is replaced with "UNPAID LEAVES".

23          Subsection 58(1) is amended

(a) in the part before clause (a), by striking out "a child under the laws of the province or becomes the natural" and substituting "or becomes a"; and

(b) by striking out "and" at the end of clause (a), adding "and" at the end of clause (b) and adding the following after clause (b):

(c) in the case of an adoption, the adoption occurs or is recognized under Manitoba law.

24          The following is added after subsection 59.2(1):

Registered common-law relationship

59.2(1.1)   For the purpose of the definition "common-law partner" in subsection (1), while they are cohabiting, persons who have registered their common-law relationship under section 13.1 of The Vital Statistics Act are deemed to be cohabiting in a conjugal relationship of some permanence.

25          The following is added after section 59.2 and before the centred heading "GENERAL":

FAMILY LEAVE

Unpaid leave for family responsibilities

59.3(1)     An employee who has been employed for at least 30 days may take up to three days of unpaid leave each year, but only to the extent that the leave is necessary

(a) for the health of the employee; or

(b) for the employee to meet his or her family responsibilities in relation to a family member as defined in subsection 59.2(1).

Notice to employer

59.3(2)     An employee wishing to take a leave under subsection (1) must give the employer as much notice as is reasonable and practicable in the circumstances.  The employer may require the employee to provide reasonable verification of the necessity of the leave.

Leave for part day

59.3(3)     If an employee takes any part of a day as leave under this section, the employer may count that day as a day of leave for the purpose of this section.

BEREAVEMENT LEAVE

Unpaid bereavement leave

59.4(1)     An employee who has been employed for at least 30 days may take up to three days of unpaid leave on the death of a family member as defined in subsection 59.2(1).

Notice to employer

59.4(2)     Before taking a leave under this section, the employee must give the employer notice of the amount and timing of the leave to be taken and of the death to which it relates.  If requested by the employer, the employee must also provide evidence of his or her entitlement to the leave.

Leave for part day

59.4(3)     If an employee takes any part of a day as leave under this section, the employer may count that day as a day of leave for the purpose of this section.

26          The following is added after subsection 60(4):

Vacation deferred because of leave

60(4.1)     An employee on a leave under this Division may defer taking vacation.  Section 36 applies to the deferred vacation.

Vacation and leave entitlements not reduced

60(4.2)     An employee's leave under this Division does not reduce his or her vacation entitlement, and an employee's vacation entitlement does not reduce his or her entitlement to a leave under this Division.

27          The following is added after the centred heading for Division 10 of Part 2 and before the centred heading for Subdivision 1 of that Division:

Period of employment

60.1        For the purpose of this Division, a period of employment is to be determined in accordance with the regulations and the following rules:

1. Consecutive periods of employment, including periods of employment that began before this section came into force, are to be treated as a continuous period of employment.

2. Subject to the regulations, a person's period of employment includes the period of a temporary interruption in employment, including a temporary interruption that began before this section came into force,

(a) immediately before and after which the person was employed by the same employer;

(b) during which the person was not working for the employer, whether or not the person remained an employee during the period; and

(c) during which the person

(i) was entitled to return to work for the employer,

(ii) could be required to return to work for the employer, or

(iii) had a reasonable expectation of returning to work for the employer.

28          Sections 61 and 62 are replaced with the following:

Termination by employer — notice or wage in lieu of notice

61(1)       Subject to section 62, an employer who terminates an employee's employment must

(a) give the employee notice of the termination

(i) in accordance with subsection 67(1) (notice period for group termination), if that subsection applies, or

(ii) in any other case, in accordance with the applicable notice period in subsection (2); or

(b) pay the employee a wage in lieu of notice, in accordance with sections 77 (amount of wage in lieu of notice) and 86 (wages to be paid within certain time).

Notice period — termination by employer

61(2)       For the purpose of subclause (1)(a)(ii), the notice period for terminating the employment of an employee is the applicable notice period set out in the following table for the employee's period of employment with the employer.

Period of employment Notice period
less than one year 1 week
at least one year and
less than three years
2 weeks
at least three years and
less than five years
4 weeks
at least five years and
less than 10 years
6 weeks
at least 10 years 8 weeks

Exceptions to notice requirements

62(1)       Section 61 does not apply in any of the following circumstances:

(a) the employee's period of employment with the employer is less than

(i) the probationary period specified in a collective agreement that applies to the employee, if that period is one year or less, or

(ii) in any other case, 30 days;

(b) the employment is for a fixed term and terminates at the end of the term;

(c) the employee is employed for a specific task and for a period not exceeding 12 months, on completion of which the employment terminates;

(d) the employee is employed in construction;

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

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

(g) the employee is on strike or has been locked out and the termination meets the requirements prescribed by regulation;

(h) the employee acts in a manner that is not condoned by the employer and that

(i) constitutes wilful misconduct, disobedience or wilful neglect of duty, or

(ii) is violent in the workplace, or

(iii) is dishonest in the course of employment;

(i) the employee has given the employer written notice of his or her intent to retire or quit on a specific date, and the employment is terminated on that date;

(j) the employer's business or the part of the business in which the employee is employed is sold or transferred, and the employee is immediately re-employed in the same business on terms and conditions that, as a whole, are equivalent to or better for the employee than those that applied to the employee before the sale or transfer;

(k) any other circumstances prescribed by regulation.

Termination by receiver-manager

62(2)       If a receiver-manager, upon taking control of an employer's business, terminates the employment of an employee of the employer, the employer is deemed for the purpose of this Division

(a) to have terminated the employment; and

(b) to have given any termination notice that was given by the receiver-manager.

Termination by employee

62.1(1)     Subject to subsection (2), an employee who terminates his or her employment must give the employer notice of the termination at least

(a) one week before the termination, if the employee's period of employment is less than one year; or

(b) two weeks before the termination, if the employee's period of employment is one year or more.

Termination without notice by employee

62.1(2)     Subsection (1) does not apply in the following circumstances:

(a) any of the circumstances described in clauses 62(1)(a) to (g);

(b) the employer acts in a manner that is improper or violent toward the employee;

(c) any other circumstances prescribed by regulation.

29          Sections 63 to 65 are repealed.

30(1)       Subsection 67(1) is replaced with the following:

Notice of intent to terminate employment of 50 or more employees

67(1)       If an employer terminates or intends to terminate the employment of 50 or more employees who are entitled under section 62 to notice of the termination or a wage in lieu of notice, and the terminations will occur within a four-week period, the employer must give the minister at least the following amount of written notice before the date on which the first termination is to take effect:

(a) 10 weeks, if there are no more than 100 affected employees;

(b) 14 weeks, if there are more than 100 and fewer than 300 affected employees;

(c) 18 weeks, if there are at least 300 affected employees.

30(2)       Subsection 67(2) is repealed.

31          Subsection 68(2) is repealed.

32          Section 76 is replaced with the following:

Employer not to change conditions after notice

76          After an employer or employee gives the other notice of termination of employment, the employer must not change the employee's working conditions or wage rates except

(a) in accordance with a collective agreement; or

(b) in the case of a termination to which section 67 applies, with the written consent of the bargaining agent for the employee or, if the employee does not have a bargaining agent, with the written consent of the employee.

33          Section 77 is replaced with the following:

Wage in lieu of notice

77          The wage in lieu of notice payable under clause 61(1)(b) must not be less than the wage the employee would have earned during

(a) the applicable notice period under subsection 61(2) or 67(1); or

(b) if a termination notice was given for less than the applicable notice period, the portion of the notice period for which notice was not given;

if the employee had worked his or her regular hours of work for the period.

Termination by employer after employee gives notice

77.1(1)     If an employee gives an employer a termination notice and the employer wishes to terminate the employment before it would otherwise be terminated by the employee,

(a) the employer must comply with section 61; and

(b) in applying sections 61 and 77, the applicable notice period is

(i) the applicable notice period under subsection 61(2) or 67(1), or

(ii) the period beginning when the employer gives notice of the termination and ending when the employment would otherwise be terminated by the employee,

whichever is shorter.

Termination by employee after employer gives notice

77.1(2)     If an employer gives an employee a termination notice and the employee wishes to terminate the employment before it would otherwise be terminated by the employer, section 62.1 applies to the employee.

34          Sections 78 and 79 are repealed.

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

DIVISION 14

EMPLOYMENT OF CHILDREN

CHILDREN UNDER 16

Restricted employment of children under 16

83(1)       Except as permitted by the regulations or by a permit issued by the director under subsection (2),

(a) no person shall employ a child under the age of 16 years; and

(b) no parent, guardian or other person having the care, custody or control of such a child shall allow the child to be employed.

Director may issue permit

83(2)        Subject to subsections (3) and 84(2), the director may, upon receiving an application signed by the employer and by a parent, guardian or other person having the care, custody or control of a child, issue a permit authorizing the child to be employed by the employer.  The permit may include any terms or conditions the director considers appropriate.

Restrictions on issuing permit

83(3)       The director must not issue a permit under subsection (2) authorizing

(a) a child to be employed in a type of employment that, in the director's opinion, is likely to adversely affect the safety, health or well-being of the child; or

(b) a child under the age of 12 years to be employed, except in special circumstances.

Restricted hours of employment

83(4)       No person shall employ a child under the age of 16 years

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

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

except as permitted by the regulations or as authorized by the director in special circumstances.

CHILDREN UNDER 18

Protection of children working at night

84(1)       Subject to the regulations, no employer shall require or allow an employee under the age of 18 years to work alone between the hours of 11:00 p.m. and 6:00 a.m.

Restricted employment of children

84(2)       Subject to the regulations, no employer shall require or allow an employee under the age of 18 years to work in a prescribed industry or occupation.

36          Subsections 86(2) and (3) are replaced with the following:

Exceptions

86(2)       Subsection (1) does not apply to an employer who pays wages in accordance with

(a) an established custom or practice that has been followed by the employer since 1976; or

(b) a permit issued by the director, upon application by the employer, that specifies when the wages are to be paid.

Director may vary or revoke permit

86(3)       The director may vary or revoke a permit issued under clause (2)(b).

37          Section 90 is replaced with the following:

Corporate director's liability for unpaid wages

90(1)       Despite any other Act but subject to the regulations, a person who is or was a director of a corporation is jointly and severally liable with the corporation to an employee or former employee of the corporation for the following unpaid wages of the employee:

(a) wages, other than vacation allowance, that were earned or became due and payable within the last six months in which the person was a director;

(b) vacation allowance that accrued or became due and payable within the last 22 months in which the person was a director.

Exceptions

90(2)       For the purpose of clause (1)(a), "wages" does not include

(a) a wage in lieu of notice that becomes payable under clause 61(1)(b); or

(b) wages earned by an employee while the corporation's business is under the control of a receiver-manager.

Manager liable after board resigns or is removed

90(3)       A person who manages or supervises the management of a corporation's business and affairs and is deemed by section 114.1 of The Corporations Act to be a director of the corporation for the purpose of that Act is liable under subsection (1) as if the person were a director of the corporation.

38(1)       Subsection 91(1) is amended by adding "or former director" after "director" in the subsection heading and in the subsection.

38(2)       Subsection 91(2) is amended

(a) in the section heading, by striking out "directors" and substituting "director or former director"; and

(b) in the subsection, by adding "or former director" after "director".

38(3)       Subsection 91(3) is amended by adding "or former director" after "director" in the section heading and wherever it occurs in the subsection.

39           Clauses 92(a) and (b) are repealed.

40          Section 96 is replaced with the following:

Order for payment of wages

96(1)       An officer who investigates a complaint and determines that wages are due and payable to an employee may issue an order requiring the employer to pay to the director

(a) subject to subsection (2), the wages that are due to the employee; and

(b) administrative costs, in the amount of $100. or 10% of the amount ordered under clause (a), whichever is greater, but not exceeding $1,000.

Maximum wages recoverable by order

96(2)       The wages that may be ordered to be paid under clause (1)(a) are limited to

(a) unpaid wages, other than those included in clause (b), that became due and payable

(i) within the last six months before the complaint was filed, or

(ii) if the employment was terminated before the complaint was filed, within the last six months of that employment or after it was terminated; and

(b) unpaid vacation allowance that became due and payable within, and any unpaid wages in respect of general holidays that occurred within,

(i) the last 22 months before the complaint was filed, or

(ii) if the employment was terminated before the complaint was filed, the last 22 months of that employment.

41          The part of section 101 before clause (a) of the English version is amended by striking out "mortage" and substituting "mortgage".

42(1)       The part of subsection 103(1) before clause (a) is amended by striking out "under Division 2 of Part 4".

42(2)       The following is added after subsection 103(1):

Collection

103(1.1)    If the director hires a collection agent to collect the amount owing by a person under the order filed in the court, the person is liable to pay or reimburse the director for the collection fees and disbursements.  They are payable on demand by the director or the collection agent, and may be collected as if they were payable under the order.

Order includes requirement to pay collection costs

103(1.2)    When the order is filed under subsection (1), it is deemed to include a requirement to pay any collection costs payable under subsection (1.1) in respect of the wages, administrative costs and interest payable under the order.

43          Section 107 is replaced with the following:

Director may allocate recovered wages among employees

107         If the director receives or recovers an amount payable as wages to two or more employees and the amount is not sufficient to pay all of their claims, the director may allocate and distribute the amount to those employees in a manner the director considers fair.

44(1)       The part of subsection 110(1.1) before clause (a) is amended by striking out "made" and substituting "filed with the director, along with written reasons for the request,".

44(2)       Subsection 110(2) is repealed.

45          Subsections 111(1) and (2) are replaced with the following:

Deposit required

111(1)      If the person requesting a referral under section 110 is required by the order to pay wages, the person must deposit with the director, at the time of making the request, an amount equal to the total amount payable by the person under the order.

Chairperson may reduce deposit

111(2)      If the amount to be paid as a deposit is more than a prescribed amount, the board chairperson may, on application, reduce it to an amount not less than the prescribed amount if he or she is satisfied that it would be unfair or unreasonable not to do so.

46          Subsections 117(3) and (4) are replaced with the following:

Director's response to non-compliance

117(3)      Where the director determines that a person is not complying with this Code, the director may do one or more of the following:

(a) make any order that an officer may make under Part 3 (payment of wages);

(b) take any action that the director may take under Part 6 (offences and penalties).

Enforcement of order

117(4)      An order under clause (3)(a) is not subject to subsection 96(2) (maximum amount recoverable), and may be enforced as if it were made under Part 3.

47          Section 120 is amended by striking out "An officer" and substituting "For the purpose of administering or enforcing this Code, an officer".

48          Section 121 is amended by adding ", including a proceeding before the board," after "proceeding".

49          The following is added after subsection 122(4):

Non-application of Labour Relations Act

122(5)      Section 142 of The Labour Relations Act does not apply in respect of a matter referred to the board under this Code.

50(1)       The part of subsection 123(1) before clause (a) is amended by striking out "128 or".

50(2)       Subsection 123(2) is amended by striking out "128 or".

51(1)       The part of subsection 125(3) before clause (a) is amended by striking out "an employer or employee" and substituting "a person".

51(2)       The following is added after subsection 125(4):

Board may award costs

125(5)      The board may, as part of any order it issues to a person under this Code, require the person to pay all or any part of any other party's costs in relation to the hearing, as the board considers reasonable, if in the board's opinion

(a) the person's conduct before the board was unreasonable; or

(b) having the matter referred to the board was frivolous or vexatious.

52          Sections 126 to 128 are repealed.

53          Section 129 is replaced with the following:

Board to conduct inquiry

129         The minister may require the board to conduct an inquiry respecting any matter relating to the operation or administration of this Code, and report its findings to the minister.

54(1)       Subsection 135(1) is amended

(a) by replacing clause (g) with the following:

(g) details of any banked time under section 18, and time off that is provided and taken in respect of banked time;

(b) by replacing clause (i) with the following:

(i) the employee's hours of work on a general holiday, the wage rate paid for those hours, and any time off provided in respect of those hours of work;

(c) by replacing clause (l) with the following:

(l) copies of documents relating to any leave taken by an employee, including records of the type of leave and the dates and number of days taken as leave;

54(2)       Subsection 135(2) is replaced with the following:

Records when regular hours do not vary

135(2)      Regular hours of work are not required to be recorded daily if they do not vary from day to day.  But any additional hours worked must be recorded daily.

55          Clause 137(c) is replaced with the following:

(c) a certificate of the director or the board that a person has failed to comply with an order under this Code or with the requirement under section 138.1 to pay an administrative penalty.

56          The following is added after the heading for Part 6:

ADMINISTRATIVE PENALTIES

Administrative penalty

138.1(1)    Subject to the regulations, an administrative penalty under this section may be imposed in respect of a person's failure to comply with a provision of this Code or of The Construction Industry Wages Act or the regulations under that Act, if the failure occurs after the director has given the person notice of the requirement to comply with that provision.

How penalty may be imposed

138.1(2)    The director may impose the administrative penalty by issuing a notice of administrative penalty in accordance with subsection (4) and serving it on the person liable to pay it.

Amount of penalty

138.1(3)    The amount of the penalty for each incident of non-compliance is the amount prescribed by regulation.  For this purpose, an incident of non-compliance relating to more than one employee may be treated as a separate incident of non-compliance in relation to each affected employee.

Content of notice

138.1(4)    The notice of administrative penalty must set out

(a) the name of the person liable to pay the penalty;

(b) the amount of the penalty;

(c) when and how the penalty must be paid;

(d) a description of the non-compliance, including a reference to the provision not being complied with; and

(e) a description of the person's right to appeal the penalty to the board under section 138.2.

Penalty recoverable as wages

138.1(5)    The penalty payable under this section is a debt due to the government and may be recovered by the director in the same manner as wages may be recovered under this Code.

No offence to be charged if penalty is paid

138.1(6)    A person who pays an administrative penalty in respect of an incident of non-compliance may not be charged with an offence in respect of that non-compliance, unless the non-compliance continues after the penalty is paid.

Appeal to board

138.2(1)    The person named in a notice of administrative penalty may, in accordance with subsection (2), request the director to refer it to the board for an appeal of the penalty.  Upon receipt of the request, the director must refer the matter to the board.

How to appeal

138.2(2)    The request to refer a notice of administrative penalty to the board

(a) must include a statement of the facts and reasons for the appeal; and

(b) must be filed with the director

(i) within 30 days after the notice is served on the person, if the penalty is in respect of a matter for which an order was made under subsection 96.1(1) (compensation or reinstatement), and

(ii) in any other case, within seven days after the notice is served on the person,

or within any further period of time allowed by the director.

Deposit

138.2(3)    At the time of filing the request with the director, the person filing it must deposit with the director an amount equal to the penalty being appealed.

Chairperson may reduce deposit

138.2(4)    If the amount to be paid as a deposit is more than a prescribed amount, the board chairperson may, on application, reduce it to an amount not less than the prescribed amount if he or she is satisfied that it would be unfair or unreasonable not to do so.

Chairperson not to hear appeal

138.2(5)    If the chairperson considers an application under subsection (4), he or she must not hear the appeal.

Decision of board

138.2(6)    After hearing the appeal, the board

(a) must confirm or revoke the penalty; and

(b) if the penalty is confirmed, may award costs against the person required to pay the penalty if, in the board's opinion,

(i) the person's conduct before the board was unreasonable, or

(ii) the appeal was frivolous or vexatious.

Application of other provisions

138.2(7)    To the extent they are not inconsistent with this section, the provisions of Part 4 relating to orders referred to the board apply, with necessary changes, to an appeal to the board under this section.

57          The centred heading "OFFENCES" is added before section 139.

58          Subsection 139(1) is amended

(a) by replacing clause (e) with the following:

(e) fails to give a notice of termination, or to pay a wage in lieu of notice, in contravention of subsection 62(1);

(b) by repealing clause (h); and

(c) by replacing clause (i) with the following:

(i) contravenes section 83 (employment of child) or the terms or conditions of a permit issued under that section;

59          Subsection 144(1) is amended

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

(c.1) respecting the manner of calculating an employee's regular wage rate;

(b) in clause (g), by striking out ", 128";

(c) by replacing clause (i) with the following:

(i) respecting standard hours of work, including

(i) prescribing standard hours of work for any type of employment, industry or workplace, and

(ii) respecting the director's powers under section 12 (averaging) and 13 (increased standard hours), and the factors to be considered by the director before exercising those powers;

(i.1) for the purpose of subsection 17(1), respecting the wage rate for overtime worked by an employee whose wage is based, in whole or in part, on incentives for production or performance;

(d) in clause (k), by striking out "18(1)(b)" and substituting "18(4)(b)";

(e) by replacing clause (l) with the following:

(l) respecting general holidays, including designating a day as a general holiday;

(f) by repealing clause (m);

(g) by adding the following after clause (o.1):

(o.2) respecting family leave under section 59.3;

(o.3) for the purpose of Division 10 (termination of employment) of Part 2,

(i) prescribing rules for determining a period of employment, including rules that provide for the period of a lay-off or leave or a period between successive periods of employment to be included in a period of employment,

(ii) prescribing circumstances in which an employer may terminate employment without notice or paying a wage in lieu of notice,

(iii) prescribing circumstances in which an employee may terminate his or her employment without notice, and

(iv) respecting the rights or obligations of employers or employees in the circumstances of a lay-off, strike or lockout, and prescribing criteria for treating a lay-off as a termination of employment;

(h) in clause (p), by striking out ", including set-offs,";

(i) by repealing clause (q);

(j) by replacing clause (s) with the following:

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

(k) in clause (x), by adding "or 138.2" after "111"; and

(l) by adding the following after clause (ee):

(ee.1) respecting administrative penalties under section 138.1;

60          Sections 148, 152 and 153 are repealed.

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

61          Section 3.4 of The Remembrance Day Act is replaced with the following:

Employee required to work on Remembrance Day

3.4         An employee who is required to work and does work on Remembrance Day is entitled to be paid a wage for that day not less than the total of

(a) the holiday pay that would be payable under Division 4 (General Holidays) of Part 2 of The Employment Standards Code if Remembrance Day were a general holiday; and

(b) the employee's overtime wage rate under The Employment Standards Code multiplied by

(i) the number of hours that the employee actually worked that day, or

(ii) half of the employee's normal hours of work on a regular workday,

whichever is more.

Coming into force

62          This Act comes into force on a day to be fixed by proclamation.