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C.C.S.M. c. E110
The Employment Standards Code
| Table of Contents | Regulations |
(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
1(1) In this Code,
"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 government over which the minister presides and through which this Code is administered; (« 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 and Immigration Act; (« agent des normes d'emploi »)
"general holiday" means a day that is a general holiday under Division 4 of Part 2; (« 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 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 »)
"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 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 »)
"standard hours of work" means the hours of work established under Division 2 (standard 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 paid or 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 »)
1(2) In this Code, a reference to "this Code" includes a regulation made under this Code.
1(3) Repealed, S.M. 2006, c. 26, s. 2.
S.M. 2001, c. 43, s. 41; S.M. 2006, c. 26, s. 2.
2(1) Except as otherwise provided in this Code, 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
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.
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(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 For the purpose of Divisions 2 to 5, 9 and 10 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
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.
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.
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
STANDARD 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.
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.
11 Repealed.
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.
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.
14(2) Unless it is revoked, the permit is valid for three years or any shorter period specified in the permit.
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.
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.
15 Repealed.
DIVISION 3
16 Repealed.
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.
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.
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.
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.
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.
20 Repealed.
DIVISION 4
GENERAL HOLIDAYS
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;
(a.1) Louis Riel Day (the third Monday in February);
(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.
S.M. 2006, c. 26, s. 14; S.M. 2007, c. 18, s. 1.
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.
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.
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.
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 »)
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.
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).
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.
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.
31 to 33 Repealed.
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.
39(1) In clause (2)(a), "wages" does not include
(a) overtime wages;
(b) a wage in lieu of notice payable under clause 61(1)(b); or
(c) any 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.
44(1) In subsection (2), "wages" does not include
(a) overtime wages;
(b) a wage in lieu of notice payable under clause 61(1)(b); or
(c) any vacation allowance.
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 director in writing to have the business exempted from the application of section 45, and the director may by order exempt the business, for such period as the director may specify in the order, if the director 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 director in writing to have the business exempted from the application of section 45, and the director may by order exempt the business for such period as the director may specify in the order.
Employee entitled to day off without pay
48 Subject to any order made by the director 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.
Director may set conditions and vary order
49 The director may include terms and conditions in an order made under section 46 or 47 and may vary or revoke the order.
DIVISION 7
WORK BREAKS
50(1) Subject to this section, an employer shall not require an employee to work for more than five consecutive hours without a 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 director, on application by the employer, by order approves a shorter period.
Director may set conditions and vary order
50(3) The director may include terms and conditions in an order made under clause (2)(b) and may vary or revoke the order.
DIVISION 8
WAGES 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.
DIVISION 9
UNPAID LEAVES
MATERNITY LEAVE
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 seven consecutive months is eligible for 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.
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.
57.1(1) An employee's maternity leave ends
(a) 17 weeks after it began; or
(b) if clause 54(1)(b) applies, 17 weeks after it began plus the additional time provided for in that clause.
57.1(2) An employee may end her maternity leave earlier than the day set out in subsection (1) by giving her employer written notice at least two weeks or one pay period, whichever is longer, before the day she wishes to end the leave.
PARENTAL LEAVE
Employee entitled to parental leave
58(1) An employee who adopts or becomes a parent of a child is entitled to parental leave to a maximum of 37 continuous weeks if
(a) the employee has been employed by the employer for at least seven consecutive months;
(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; and
(c) in the case of an adoption, the adoption occurs or is recognized under Manitoba law.
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 37 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.
S.M. 2000, c. 49, s. 4; S.M. 2006, c. 26, s. 23.
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.
59.1(1) An employee's parental leave ends
(a) 37 weeks after it began; or
(b) if subsection 58(2) applies, 37 weeks after it began less the number of days provided for in that subsection.
59.1(2) An employee may end his or her parental leave earlier than the day set out in subsection (1) by giving the employer written notice at least two weeks or one pay period, whichever is longer, before the day the employee wishes to end the leave.
COMPASSIONATE CARE LEAVE
59.2(1) The following definitions apply in this section.
"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 »)
"family member", in relation to an employee, means
(a) a spouse or common-law partner of the employee;
(b) a child of the employee or a child of the employee's spouse or common-law partner;
(c) a parent of the employee or a spouse or common-law partner of the parent; and
(d) any other person who is a member of a class of persons prescribed in the regulations for the purpose of this definition. (« membre de la famille »)
"physician" means a physician who provides care to a family member and who is entitled to practise medicine under the laws of the jurisdiction in which the care is provided. (« médecin »)
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.
59.2(2) Subject to subsections (3) to (8), an employee who has been employed by the same employer for at least 30 days is entitled to compassionate care leave of up to eight weeks to provide care or support to a seriously ill family member.
59.2(3) For an employee to be eligible for leave, a physician must issue a certificate stating that:
(a) a family member of the employee has a serious medical condition with a significant risk of death within 26 weeks from
(i) the day the certificate is issued, or
(ii) if the leave was begun before the certificate was issued, the day the leave began; and
(b) the family member requires the care or support of one or more family members.
Employee to give notice to employer
59.2(4) An employee who wishes to take a leave under this section must give the employer notice of at least one pay period, unless circumstances necessitate a shorter period.
Employee to provide physician's certificate
59.2(5) The employee must give the employer a copy of the physician's certificate as soon as possible.
59.2(6) An employee may take no more than two periods of leave totalling no more than eight weeks, which must end no later than 26 weeks after the day the first period of leave began.
59.2(7) No period of leave may be less than one week's duration.
59.2(8) Unless the employee and employer agree otherwise, an employee may end a leave earlier than the expiry of eight weeks by giving the employer at least 48 hours' notice of his or her expected date of return.
S.M. 2003, c. 7, s. 3; S.M. 2006, c. 26, s. 24.
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).
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.
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
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).
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.
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.
UNPAID LEAVE FOR RESERVISTS
59.5(1) The following definitions apply in this section.
"Reserves" means the component of the Canadian Forces referred to in the National Defence Act (Canada) as the reserve force. (« Réserve »)
"service" means active duty or training in the Reserves. (« service »)
59.5(2) An employee who
(a) is a member of the Reserves;
(b) has been employed by the same employer in civilian employment for at least seven consecutive months; and
(c) is required to be absent from work for the purpose of service;
is entitled, subject to the regulations, to an unpaid period of leave for the purpose of that service.
59.5(3) Subject to the regulations, the period of leave for the purpose of service is the period necessary to accommodate the period of service.
59.5(4) An employee wishing to take a leave under this section must give the employer, in writing, 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, including a certificate from an official with the Reserves stating
(a) that the employee is a member of the Reserves and is required for service; and
(b) if possible, the expected start and end dates for the period of service.
59.5(5) An employee on a leave under this section must give the employer written notice of the expected date of return to work. The employer may defer the employee's return to work by up to two weeks or one pay period, whichever is longer, after receiving the notice.
GENERAL
60(1) No employer shall lay off or terminate the employment of an employee entitled to take a leave under this Division because the employee is pregnant or intends to take a leave or takes a leave allowed by this Division.
60(2) At the end of an employee's leave under this Division, the employer shall reinstate the employee to the position the employee occupied when the leave began or to a comparable position, with not less than the wages and any other benefits earned by the employee immediately before the leave began.
60(3) Subsections (1) and (2) do not apply if the employer lays off the employee, terminates his or her employment or fails to reinstate for reasons unrelated to the leave.
60(4) For the purpose of pension and other benefits, the employment of an employee with the same employer before and after a leave under this Division is deemed to be continuous.
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.
60(5) An employee who claims
(a) that he or she has been laid off or that his or her employment has been terminated contrary to subsection (1); or
(b) that he or she has not been reinstated as required by subsection (2);
may file a complaint with an officer under section 92.
Complaint to be filed within six months
60(6) A complaint must be filed within six months after the date of the lay-off or termination, or within six months after the date the employee should have been reinstated.
S.M. 2000, c. 49, s. 6; S.M. 2003, c. 7, s. 4; S.M. 2006, c. 26, s. 26.
DIVISION 10
TERMINATION 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.
SUBDIVISION 1
TERMINATION OF THE EMPLOYMENT OF AN INDIVIDUAL
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.
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.
63 to 65 Repealed.
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) 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.
67(2) Repealed, S.M. 2006, c. 26, s. 30.
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.
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.
68(2) Repealed, S.M. 2006, c. 26, s. 31.
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.
72(2) A joint planning committee may determine its own procedure.
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 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.
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.
78 and 79 Repealed.
DIVISION 11
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.
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
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.
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.
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.
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.
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).
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.
88 An employer shall pay wages
(a) in Canadian currency;
(b) by cheque or bill of exchange drawn upon a 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
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.
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.
Officer may order corporate director or former 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 or former 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 director or former director
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 or former director of a corporation.
Corporate director or former director may recover from corporation
91(3) If a director or former director of a corporation pays wages under an order, nothing in this Code affects any right the director or former 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
92 A complaint under any of the following provisions may be filed with an officer in a form acceptable to the director:
(a) repealed, S.M. 2006, c. 26, s. 39;
(a.1) subsection 60(5) (leave of absence);
(b) repealed, S.M. 2006, c. 26, s. 39;
(c) subsection 82(2) (equal wages);
(d) section 87 (payment of wages).
S.M. 2003, c. 7, s. 5; S.M. 2006, c. 26, s. 39.
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 Conservation, 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.
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.
Compensation or reinstatement order
96.1(1) If an officer investigating a complaint determines that an employer has contravened section 60, the officer may by order require the employer to pay compensation to the director for any loss the employee incurred as a result of the contravention, or reinstate the employee, or do both.
96.1(2) An order under subsection (1) must also require the employer to pay administrative costs of $100., or 10% of any compensation ordered, whichever is more, to a maximum of $1,000.
Compensation deemed to be wages
96.1(3) For all purposes under this Code,
(a) a complaint that results or might result in an order of compensation or reinstatement under this section is deemed to be a complaint relating to unpaid wages; and
(b) compensation ordered to be paid under this section is deemed to be wages due and payable to the employee, and an order to pay compensation is deemed to be an order for the payment of wages made under subsection 96(1).
96.1(4) Subsection 96(2) (maximum amount recoverable by employee) does not apply to a compensation order made under this section.
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.
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.
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 b