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The Worker Recruitment and Protection Act

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S.M. 2008, c. 23

Bill 22, 2nd Session, 39th Legislature

The Worker Recruitment and Protection Act

(Assented to June 12, 2008)

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

DEFINITIONS

Definitions

1           The following definitions apply in this Act.

"child performer" means, subject to the regulations, a child under the age of 17 who

(a) performs as an actor, extra, musician, singer, dancer or entertainer; or

(b) performs as a model who is engaged to display or physically illustrate a product, idea or service. (« jeune artiste de spectacle »)

"child performer recruitment" means the activities of auditioning, scouting or recruiting a child under the age of 17 for the purpose of referring the child to a person engaged in a child talent agency business. (« recruter des jeunes artistes de spectacle »)

"child talent agency business" means the following activities that are carried out for a fee:

(a) promoting a child performer;

(b) finding, or offering or promising to find, work for a child performer. (« représenter des jeunes talents »)

"common-law partner" of a person means a person who, not being married to the other person, is cohabiting with him or her in a conjugal relationship of some permanence. (« conjoint de fait »)

"director" means the individual appointed or acting as the Director of Employment Standards under The Employment Standards Code. (« directeur »)

"employer" has the same meaning as in subsection 1(1) of The Employment Standards Code. (« employeur »)

"employment agency business" means the activities of finding individuals — other than child performers or foreign workers — for employment, or finding employment for such individuals. (« fournir des services de placement »)

"family member", in relation to an individual, means

(a) a spouse or common-law partner of the individual;

(b) a child of the individual or a child of the individual's spouse or common-law partner;

(c) a parent or legal guardian of the individual or a spouse or common-law partner of the parent or legal guardian; and

(d) any other individual who is a member of a class of individuals prescribed in the regulations for the purpose of this definition. (« membre de la famille »)

"finding" includes assisting in finding. (« trouver »)

"foreign worker" means, subject to the regulations, a foreign national who, pursuant to an immigration or foreign temporary worker program, is recruited to become employed in Manitoba. (« travailleur étranger »)

"foreign worker recruitment" means the following activities, whether or not they are provided for a fee:

(a) finding one or more foreign workers for employment in Manitoba;

(b) finding employment in Manitoba for one or more foreign workers. (« recruter des travailleurs étrangers )

"licensee" means a person who holds a licence under this Act. (« titulaire de licence »)

"officer" means an officer as defined in subsection 1(1) of The Employment Standards Code. (« agent »)

"person" includes a partnership, union, organization and unincorporated association. (« personne »)

LICENSING

Employment agency businesses must be licensed

2(1)        No person shall engage in an employment agency business unless the person holds a licence under this Act that authorizes the person to do so.

Child talent agency business must be licensed

2(2)        No person shall engage in a child talent agency business unless the person holds a licence under this Act that authorizes the person to do so.

Child performer recruitment must be licensed

2(3)        No person shall engage in child performer recruitment unless the person holds a licence under this Act that authorizes the person to do so.

Foreign worker recruitment must be licensed

2(4)        No person shall engage in foreign worker recruitment unless the person is an individual who holds a licence under this Act that authorizes him or her to do so.

Exemptions

2(5)        The following persons are not required to hold a licence under this Act:

(a) an individual who, on behalf of his or her employer, engages in activities to find employees, including employees who may be foreign workers, for that employer;

(b) a person who, without receiving a fee directly or indirectly, engages in activities to find employment for a foreign worker who is his or her family member;

(c) an agency of the government or a municipality;

(d) a person or class of persons exempt under the regulations.

Licence application

3(1)        A person may apply, in a form approved by the director, for a licence authorizing the person to engage in

(a) an employment agency business;

(b) a child talent agency business; or

(c) child performer recruitment.

Licence application: foreign worker recruitment

3(2)        An individual may apply, in a form approved by the director, for a licence authorizing him or her to engage in foreign worker recruitment.

Applicant to provide information

4(1)        When applying for a licence, the applicant must provide

(a) the information required by the regulations or the application form; and

(b) any additional information requested by the director.

Licence fee

4(2)        Before the director issues a licence, the applicant must pay the licence fee specified in the regulations.

Security: foreign worker recruiter

5           Before the director licenses an individual to engage in foreign worker recruitment, the individual must provide

(a) an irrevocable letter of credit from a financial institution that carries on business in Manitoba; or

(b) a deposit of cash or securities acceptable to the director.

The terms, conditions and amount of the letter of credit or other security must be satisfactory to the director and must meet the requirements of the regulations.

Investigations

6(1)        The director may make inquiries into and investigate the character, financial history and competence of an applicant for a licence as necessary to determine whether the applicant meets the requirements of this Act and the regulations.

Corporations and partnerships

6(2)        If the applicant is a corporation or partnership, the director may inquire into or investigate the conduct of the officers, directors or partners of the applicant.

Collection of information

6(3)        The director may

(a) require information or material from any person who is the subject of the inquiry or investigation; and

(b) request information or material from any person who the director has reason to believe can provide information or material relevant to the inquiries or investigations.

Verification of information

6(4)        The director may require that any information provided under subsection (3) be verified by statutory declaration.

Terms and conditions of licence

7(1)        The director may, if he or she considers it in the public interest to do so, impose terms or conditions on a licence at the time of issuing it, or at any other time by written notice to the licensee.  A licence is also subject to any terms or conditions imposed by regulation.

Duration of licence

7(2)        A licence is valid for one year from the day it is issued.

Licence not transferable or assignable

7(3)        A licence is not transferable or assignable.

Change in business entity

8(1)        If there is a change in the officers, directors or partners of a licensee, the licensee may not continue to engage in activities under the licence unless the director consents to the continuation in writing.

Sole proprietorships

8(2)        If a licensee who is a sole proprietor dies or becomes incapable, the director may issue a temporary licence to permit the sole proprietor's business to be maintained or wound down.  The temporary licence is valid for the period stated in the licence.

No application re foreign worker recruitment

8(3)        Subsection (2) does not apply to an individual licensed to be engaged in foreign worker recruitment.

Refusal to issue licence

9(1)        The director may refuse to issue a licence to an applicant if

(a) the applicant provides incomplete, false, misleading or inaccurate information in support of the application;

(b) the applicant fails to meet any qualification or satisfy any requirement of this Act or the regulations;

(c) having regard to the past conduct of the applicant, there are reasonable grounds to believe that the applicant will not act in accordance with law, or with integrity, honesty or in the public interest, while carrying out the activities for which the licence is required; or

(d) the applicant is carrying on activities that are in contravention of this Act, the regulations or the terms of the licence, or will be in contravention if the licence is granted.

Where applicant is a corporation or partnership

9(2)        The director may refuse to issue a licence authorizing a corporation or partnership to engage in an employment agency business, a child talent agency business or child performer recruitment if,

(a) in the case of a corporation, a director or officer of the corporation could be refused a licence under subsection (1); or

(b) in the case of a partnership, a member of the partnership could be refused a licence under subsection (1).

Notice of refusal

9(3)        If the director refuses to issue a licence to an applicant, the director must give the applicant written reasons for the refusal, along with a notice that the refusal may be appealed in accordance with section 21.

Cancellation or suspension of licence

10(1)       Subject to subsection (2), the director may cancel or suspend the licence of a licensee

(a) for any reason for which the director may refuse to issue a licence to an applicant under section 9;

(b) if the licensee fails to provide information requested by the director or required by the regulations;

(c) if the licensee contravenes or fails to comply with this Act or the regulations; or

(d) if the licensee contravenes or fails to comply with a condition of the licence.

Notice of cancellation or suspension

10(2)       If the director cancels or suspends a licence, the director must give the licensee written reasons for doing so, along with a notice that the cancellation or suspension may be appealed in accordance with section 21.

When cancellation or suspension becomes effective

10(3)       A decision to cancel or suspend a licence takes effect when notice of the decision is served on the licensee.

REGISTERING EMPLOYERS OF FOREIGN WORKERS

Employer must register to recruit foreign workers

11(1)        No employer shall recruit a foreign worker without first registering with the director.

Recruitment registration application

11(2)       An employer may apply, in a form approved by the director, to be registered to recruit a foreign worker.

Applicant to provide information

11(3)       When applying to be registered, the employer must provide the following information:

(a) the employer's name and address;

(b) the business number assigned to the employer by the Canada Revenue Agency, if the employer has a business number;

(c) the name and address of every individual who will be engaged, directly or indirectly, in foreign worker recruitment on behalf of the employer;

(d) the information prescribed in the regulations respecting the position to be filled by a foreign worker;

(e) any additional information that is required by the regulations or the application form, or requested by the director.

Registration

11(4)       Unless the application is refused under section 12, the director must

(a) register the employer; and

(b) provide the employer written notice of the registration and the date on which the registration expires.

Term of registration

11(5)       Subject to the regulations, a registration is valid for the period stated in the registration.

Refusal to register

12(1)       The director may refuse to register an employer if

(a) the employer provides incomplete, false, misleading or inaccurate information in support of the application;

(b) having regard to the past conduct of the employer, there are reasonable grounds to believe that the employer will not act in accordance with the law, or with the undertakings the employer has given in respect of employing a foreign worker;

(c) an individual who will be engaged in foreign worker recruitment on behalf of the employer is required to hold a licence under section 2 but does not; or

(d) there are reasonable grounds to believe that an employee who will be engaged in foreign worker recruitment on behalf of the employer will not act in accordance with law, or with integrity, honesty or in the public interest.

Notice of refusal

12(2)       If the director refuses to register an employer, the director must give the employer written reasons for doing so, along with a notice that the refusal may be appealed in accordance with section 21.

Cancellation or suspension of registration

13(1)       Subject to subsection (2), the director may cancel or suspend the registration of an employer

(a) for any reason for which the director may refuse to register an employer under section 12;

(b) if the employer fails to provide information requested by the director or required by the regulations; or

(c) if the employer contravenes or fails to comply with this Act or the regulations.

Notice of cancellation or suspension

13(2)       If the director cancels or suspends an employer's registration, the director must give the employer written reasons for doing so, along with a notice that the cancellation or suspension may be appealed in accordance with section 21.

When cancellation or suspension becomes effective

13(3)       A decision to cancel or suspend an employer's registration takes effect when notice of the decision is served on the employer.

WORK PERMITS FOR CHILD PERFORMERS

Work permit required for child performer

14(1)       No person engaged in a child talent agency business may find or attempt to find work for a child performer unless

(a) the director has issued a work permit respecting the child performer; or

(b) the regulations permit the child to work as a child performer without a work permit.

Director may issue work permit

14(2)       The director may issue a work permit authorizing a child to work as a child performer if the director has received an application that is

(a) in a form approved by the director; and

(b) signed by the child talent agency business and by a parent, guardian or other person having the care, custody or control of the child.

Terms and conditions

14(3)       A work permit issued under this section may include any terms or conditions the director considers appropriate, and may be revoked if the director is satisfied that any of the terms and conditions have not been met.

OBLIGATIONS AND PROHIBITIONS

People seeking or finding employment may not be charged fees

15(1)       A person who is engaged in an employment agency business must not, directly or indirectly, charge or collect a fee

(a) from an individual who is seeking employment or information about employers seeking employees; or

(b) from an individual

(i) for finding or attempting to find employment for the individual, or

(ii) for providing the individual with information about any employer seeking an employee.

No charge for child talent agency services

15(2)       A person who is engaged in a child talent agency business must not, directly or indirectly, charge or collect a fee

(a) from a child who is seeking

(i) work as a child performer, or

(ii) information about persons seeking to engage children to work as child performers; or

(b) from a child

(i) for attempting to find work for the child as a child performer, or

(ii) for providing the child with information about persons seeking a child performer;

or from a family member on behalf of the child.

No charge for child performer recruitment

15(3)       A person who is engaged in child performer recruitment must not, directly or indirectly, charge or collect a fee from a child performer, or from a family member on behalf of a child performer, for

(a) auditioning, scouting or recruiting the child; or

(b) referring the child to a person engaged in a child talent agency business.

Foreign workers not to be charged

15(4)       An individual who is engaged in foreign worker recruitment must not directly or indirectly charge or collect a fee from a foreign worker for finding or attempting to find employment for him or her.

Fee for services

15(5)       Despite subsections (1) and (2), a person engaged in an employment agency business or child talent agency business may charge and collect a fee for a service supplied to an individual as long as

(a) paying for the service is not a condition of the person's acting for or on behalf of the individual; and

(b) the regulations do not prohibit charging a fee for the service.

Contract void

15(6)       If a contract provides for the payment of a fee to a person who is prohibited by this section from directly or indirectly charging or collecting it, the contract is void.

No recovery from foreign worker

16(1)       No employer shall, directly or indirectly, recover from a foreign worker

(a) subject to subsection (2), any cost incurred by the employer in recruiting the worker; or

(b) any other amount, except an amount in respect of the reasonable monetary value of a good, service or benefit that

(i) was given to the worker by the employer,

(ii) was to the direct benefit or advantage of the worker, and

(iii) was not required to be obtained by the worker as a condition of being employed, or if it was, the worker was not required to obtain it from the employer.

Exceptions

16(2)       An employer may sue to recover the employer's reasonable costs of recruiting a foreign worker from that worker if he or she fails to report for work or, having reported,

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

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

(ii) is violent in the workplace, or

(iii) is dishonest in the course of employment; or

(b) fails to complete substantially all of his or her term of employment with the employer.

No reduction of wages etc. re foreign workers

17          An employer must not reduce the wages of a foreign worker, or reduce or eliminate any other benefit or term or condition of a foreign worker's employment that the employer undertook to provide as a result of participating in the recruitment of a foreign worker, and any agreement by the foreign worker to such a reduction or elimination is void.

ADMINISTRATION AND ENFORCEMENT

Duty to maintain records

18(1)       A licensee must

(a) prepare complete and accurate financial records of its operations in Manitoba, and maintain them for at least three years after the records are made; and

(b) prepare other records and documents described in the regulations, and maintain them for the period specified in the regulations.

Records available in Manitoba

18(2)       A licensee, former licensee or person whose licence has been cancelled or suspended must make the records referred to in subsection (1) available for inspection by an officer at a time and place, in Manitoba, specified by the officer.

Authority to investigate non-compliance

19(1)       The director, or an officer authorized in writing by the director, may on his or her own initiative make any inspection or investigation that he or she considers necessary or advisable to determine whether this Act, the regulations or a term or condition imposed under this Act is being complied with.

Powers

19(2)       For the purpose of administering or enforcing this Act, the director and an officer authorized in writing by the director have the powers set out in section 120 of The Employment Standards Code.

Order to recover prohibited amounts

20(1)       If the director is satisfied that

(a) a licensee has collected a fee prohibited by section 15; or

(b) an employer has recovered an amount prohibited by section 16;

the director may, by order, recover the amount from the licensee or employer on behalf of the individual who paid it.

Order to enforce undertakings

20(2)       If the director is satisfied that an employer has reduced the wages of a foreign worker or reduced or eliminated a benefit or other term or condition of employment of a foreign worker contrary to section 17, the director may, by order, recover from the employer on behalf of the foreign worker

(a) the amount by which the wages were decreased; or

(b) the reasonable monetary value of the reduction or loss of the benefit or other term or condition of employment.

Enforcement when employer contravenes Act

20(3)       If an employer

(a) recruits a foreign worker when the employer is not registered under this Act; or

(b) uses an individual to recruit a foreign worker when the individual is required to hold a licence under this Act but does not;

the director may, by order, recover from the employer on behalf of the foreign worker, any fee that the worker was required to pay to find employment with the employer.

Use of proceeds of letters of credit

20(4)       If the director makes an order under this section in respect of a licensee engaged in foreign worker recruitment, the director may, in accordance with the regulations,

(a) declare the letter of credit, cash or other security provided by the licensee under section 5 forfeited; and

(b) use the proceeds realized to reduce or satisfy the amount recoverable under the order.

Recovery same as recovering unpaid wages

20(5)       The amount ordered to be paid by a licensee or employer under this section is a debt owing to the government and may be recovered by the director in the same manner, and with the same priority, as wages may be recovered under The Employment Standards Code.

Director may determine amount

20(6)       The director may determine the amount to be recovered by order under this section, in a reasonable and appropriate manner, if the director is unable to determine the amount recoverable because the person against whom the order is to be made has failed to

(a) keep or maintain complete and accurate records; or

(b) make the records available for inspection.

Application

20(7)       For the purposes of subsection (5), the provisions of The Employment Standards Code apply, with necessary changes, to an order made by the director under this section in the same manner as they apply to an order made by the director under clause 117(3)(a) of the Code.

Definition: "licensee"

20(8)       In this section, "licensee" includes a person who formerly held a licence or whose licence has been cancelled or suspended.

Appeal of decision re licence or registration

21(1)       A decision of the director to refuse, cancel or suspend a licence or registration may be appealed to a judge of the Court of Queen's Bench by the person who

(a) applied for, or held, the licence; or

(b) applied to be, or was, registered.

How to appeal

21(2)       An appeal to the court must be made by filing an application with the court within 14 days after a copy of the director's decision is served on the person appealing. As soon as practicable after filing the application, the person appealing must serve a copy of the application on the director.

Powers of court on appeal

21(3)       On hearing an appeal, the court may

(a) set aside, vary or confirm the decision of the director;

(b) make any decision that in its opinion should have been made; or

(c) refer the matter back to the director for further consideration in accordance with any direction of the court.

Foreign worker not required to be party

22          A foreign worker is not required to be a party in a proceeding in respect of an order, as provided for in subsection 20(7), or of an appeal under section 21.

Sharing information

23(1)       For the purpose of administering and enforcing this Act, the director may provide information collected or obtained under this Act, including personal information as defined in The Freedom of Information and Protection of Privacy Act, to a department of the government or a department or agency of the Government of Canada or of another province.

Forwarding report to professional regulatory body

23(2)       If the director considers that information collected under this Act in respect of an individual engaged in foreign worker recruitment, including personal information as defined in The Freedom of Information and Protection of Privacy Act, is relevant to any of the following persons or bodies, the director may report the information to the person or body:

(a) The Law Society of Manitoba or the law society of another province;

(b) the Canadian Society of Immigration Consultants;

(c) any other person or body that governs or regulates the conduct of individuals who recruit or assist foreign workers entering Canada.

GENERAL

Forms

24          The director may approve forms for use under this Act and the regulations.

Manner of service

25(1)       A copy of an order or notice of decision required to be given to, or served on, a person under this Act may be served personally or by ordinary mail, e-mail, or fax, or by another method that allows proof of receipt.

When order or notice mailed

25(2)       An order or notice of decision sent by ordinary mail under subsection (1) to a person's last known address is deemed to be received on the seventh day after the day of mailing, unless the person to whom it is sent establishes that, acting in good faith, he or she did not receive the order or notice, or did not receive it until a later date, because of absence, accident, illness or other cause beyond his or her control.

When order or notice sent electronically

25(3)       Service by e-mail or by fax under subsection (1) is deemed to be received the day after it is sent or, if that day is a Saturday or holiday, on the next day that is not a Saturday or holiday, unless the person establishes that, acting in good faith, he or she did not receive the order or notice, or did not receive it until a later date, because of absence, accident, illness or other cause beyond his or her control.

Not compellable in civil proceeding

26          The director and an officer are not compellable witnesses in a civil action or other proceeding to which the director or officer is not a party respecting any document or information obtained, received or made under this Act or regulations, and may not be compelled to produce such documents.

Public registry

27          The director must maintain a public registry, which may be in electronic form, containing the information prescribed in the regulations respecting licensees.

Offences

28(1)       A person is guilty of an offence who

(a) contravenes a provision of this Act;

(b) makes a false or misleading statement to the director or an officer acting under the authority of this Act;

(c) destroys, mutilates, alters or fails to keep a record or document required to be kept under this Act or the regulations; or

(d) hinders, obstructs or interferes with, or attempts to hinder, obstruct or interfere with, the director or an officer acting under the authority of this Act.

Penalty

28(2)       Every person who is guilty of an offence under subsection (1) is liable on summary conviction

(a) in the case of an individual, to a fine of not more than $25,000; and

(b) in the case of a corporation, to a fine of not more than $50,000.

Directors and officers

28(3)       If a corporation commits an offence under subsection (1), a director or officer of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of the offence and is liable on summary conviction to a fine of not more than $25,000, whether or not the corporation has been prosecuted or convicted.

Regulations

29          The Lieutenant Governor in Council may make regulations

(a) exempting children or classes of children from the definition "child performer" in section 1;

(b) prescribing classes of individuals for the purpose of clause (d) of the definition "family member" in section 1;

(c) exempting foreign nationals or classes of foreign nationals from the definition "foreign worker" in section 1;

(d) respecting the issuance of licences under this Act, including prescribing

(i) qualifications that a person must have to become a licensee,

(ii) information, including personal information, that must be provided by a person applying for a licence,

(iii) terms and conditions of licences, and

(iv) the fees payable for licences;

(e) respecting the duties of persons engaged in an employment agency business or a child talent agency business, or in child performer or foreign worker recruitment;

(f) establishing grounds for cancellation and suspension of licences,

(g) exempting persons or classes of persons from the requirement to hold a licence under this Act;

(h) respecting a letter of credit or other security to be provided under section 5, including its form and amount, the conditions on which and manner in which it may be forfeited, and the disposition of the proceeds realized upon its forfeiture;

(i) respecting the amount of cash that may be accepted under section 5 in lieu of a letter of credit or other security;

(j) respecting the registration of employers who wish to recruit foreign workers, including establishing the term of such a registration;

(k) prescribing work that a child performer may perform without a work permit;

(l) prescribing services for which persons engaged in an employment agency business or child talent agency business may not charge a fee;

(m) governing the documents, records and information that must be kept by licensees, including prescribing types and classes of documents, records and information, and time periods for retaining each type and class;

(n) prescribing documents, records or information that must be provided to the director or an officer and respecting the time and manner in which they must be provided;

(o) respecting information that an employment agency business must provide to a person when the agency refers him or her to an employer;

(p) respecting any matter necessary or advisable to carry out the purposes of this Act.

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

Transitional — licensed employment agencies

30(1)       If, on the coming into force of this Act, a person holds a licence to operate an employment agency issued under the former Act, the person' s licence is deemed to be a licence to engage in an employment agency business issued under this Act.

Definition: "former Act"

30(2)       In subsection (1), "former Act" means The Employment Services Act, R.S.M. 1987, c. E100, as that Act read immediately before the coming into force of this Act.

Repeal

31          The Employment Services Act, R.S.M. 1987, c. E100, is repealed.

C.C.S.M. reference

32          This Act may be referred to as chapter W197 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

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