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C.C.S.M. c. E110

The Employment Standards Code

(Assented to June 29, 1998)

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

PART 1

DEFINITIONS, APPLICATION AND OPERATION OF THIS CODE

Definitions

1(1)        In this Code,

"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 Labour Administration 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; (version anglaise seulement)

"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 »)

Meaning of "this Code"

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; S.M. 2012, c. 40, s. 56.

Application of this Code

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.

S.M. 2006, c. 26, s. 3.

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.

S.M. 2006, c. 26, s. 4.

Continuity of employment

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.

S.M. 2006, c. 26, s. 5.

PART 2

MINIMUM STANDARDS

DIVISION 1

MINIMUM WAGE AND MINIMUM WAGE BOARDS

Payment of minimum wage

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

Minister may establish minimum wage boards

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

Composition of each minimum wage board

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

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

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

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

Vacancy

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

Remuneration

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

Minister may refer matter to minimum wage board

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

Board to report on referred matter

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

Board may conduct hearing, receive representations

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

DIVISION 2

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.

Standard hours of work

10          The standard hours of work for an employee are

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

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

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

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

S.M. 2006, c. 26, s. 7.

11          [Repealed]

S.M. 2006, c. 26, s. 8.

Averaging

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

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

(i) by a collective agreement, or

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

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

Effect of averaging

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

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

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

Standard hours = W × H

In this formula,

W

is the number of weeks in the specified period;

H

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

S.M. 2006, c. 26, s. 9.

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.

S.M. 2006, c. 26, s. 9.

Terms and conditions of permit

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

Term of permit

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

Factors to be considered

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

(a) [repealed] S.M. 2011, c. 13, s. 2;

(b) whether 75% of the employees who would be affected by the permit favour its being issued;

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

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

(e) any other factors prescribed by regulation.

Director may amend or revoke permit

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

Employer to post permit

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

Employer to post work schedules

14(6)       The employer must also post individual work schedules for employees two weeks before the work is performed, when the director requires it.

Effect of change in posted hours

14(7)       If

(a) an employer who is required to post individual work schedules makes a change to an employee's schedule that the employee did not request; and

(b) the change is made less than two weeks before the work is performed;

any hours worked over eight per day not set out in the original schedule are overtime.

S.M. 2006, c. 26, s. 9; S.M. 2011, c. 13, s. 2.

Individual flextime arrangements

14.1(1)     At the request of an employee who is not covered by a collective agreement and who regularly works at least 35 hours per week, an employer may enter into a written agreement with the employee that exempts the employee from the standard hours of work set out in section 10.

Agreement may provide alternative hours

14.1(2)     An agreement must

(a) establish alternative standard hours of work for the employee, which

(i) must not exceed 40 hours per week,

(ii) must not exceed 10 hours per day, and

(iii) may specify a different number of hours per day for each day of the week that the employee works; and

(b) clearly specify that the employee or the employer may terminate the agreement at any time by giving the other party at least two weeks' written notice.

Terminating the agreement with less notice

14.1(3)      An agreement may be terminated with less than two weeks' notice if both parties agree.

Adjustments permitted

14.1(4)     At the request of an employee who has entered into an agreement, the employer may make occasional adjustments to the employee's hours of work set out in the agreement, as long as they do not exceed 10 hours per day or 40 hours per week.  The agreement is deemed to be amended to provide for such adjustments.

Director may terminate or prohibit an agreement

14.1(5)     The director may, by written notice to the employer,

(a) terminate an agreement at any time;

(b) prohibit the employer from entering into an agreement under this section.

S.M. 2011, c. 13, s. 3.

15          [Repealed]

S.M. 2006, c. 26, s. 10.

DIVISION 3

OVERTIME

16          [Repealed]

S.M. 2006, c. 26, s. 10.

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.

S.M. 2006, c. 26, s. 11.

"Banked time" defined

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

Agreement for paid time off in lieu of overtime pay

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

Rate of time off

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

When banked time off to be provided

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

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

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

Regular wage rate applies to time off

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

Effect of time off

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

Wage payable for banked time not taken

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

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

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

S.M. 2006, c. 26, s. 12.

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.

S.M. 2006, c. 26, s. 12.

20          [Repealed]

S.M. 2006, c. 26, s. 13.

DIVISION 4

GENERAL HOLIDAYS

Definitions

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

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

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

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

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

"general holiday" means any of the following days:

(a) New Year's Day;

(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.

Eligibility for holiday pay

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

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

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

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

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

Employer's consent to employee's absence

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

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

(b) because he or she is ill.

S.M. 2006, c. 26, s. 14.

Amount of holiday pay

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

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

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

Employee with varying wages

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

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

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

S.M. 2006, c. 26, s. 14.

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.

S.M. 2006, c. 26, s. 14.

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, climate-controlled agricultural business, seasonal business, place of amusement, gasoline service station, hospital, hotel or restaurant, or in domestic service, the employer may, instead of complying with subsection (1),

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

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

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

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

Definitions

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

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

"seasonal business" means a business that in each year suspends operations for one or more periods of at least three weeks each owing to a fluctuation in market demand that is characteristic of the business or related to the ripening of a crop. (« entreprise saisonnière »)

S.M. 2006, c. 26, s. 14; S.M. 2011, c. 13, s. 4.

Holiday pay for day off

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

Day off for general holiday not falling on workday

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

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

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

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

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

S.M. 2006, c. 26, s. 14.

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).

S.M. 2006, c. 26, s. 14.

Substitution of other day for general holiday

28(1)       An employer may substitute another day for a general holiday if the substitution is made

(a) in accordance with a collective agreement; or

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

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

Substituted day is deemed general holiday

28(2)       A day substituted for a general holiday under subsection (1) is deemed to be a general holiday for the purpose of this Code.

Onus

28(3)       The onus is on the employer to establish that the substitution of a day for a general holiday is done in accordance with subsection (1).

S.M. 2006, c. 26, s. 14.

Former employee's entitlement

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

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

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

Portion of wage in lieu of notice

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

S.M. 2006, c. 26, s. 14.

Construction employees

30          If an employee is employed in construction,

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

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

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

S.M. 2006, c. 26, s. 14.

31 to 33    [Repealed]

S.M. 2006, c. 26, s. 14.

DIVISION 5

ANNUAL VACATIONS AND VACATION ALLOWANCES

Employee entitlement to annual vacation

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

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

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

Annual vacation does not include general holiday

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

When annual vacation to be given

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

Setting dates for annual vacation

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

Period of vacation not to be less than a week

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

Vacation may be required during annual shut-down

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

Meaning of "wages"

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

(a) overtime wages;

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

(c) any vacation allowance.

Amount of vacation allowance

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

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

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

Time of payment of vacation allowance

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

Determining the cash value of board and lodging

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

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

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

S.M. 2006, c. 26, s. 15.

Certain payments do not affect vacation entitlement

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

Effect of previous year or vacation taken in advance

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

Employer may use common anniversary date

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

Director may prohibit common anniversary date

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

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

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

Employer to give proportion of entitlements

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

Effect of notice of termination

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

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

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

Meaning of "wages"

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

(a) overtime wages;

(b) 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.

S.M. 2006, c. 26, s. 16.

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.

S.M. 2006, c. 26, s. 17.

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.

S.M. 2006, c. 26, s. 17.

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.

S.M. 2006, c. 26, s. 17.

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.

S.M. 2006, c. 26, s. 18.

DIVISION 7

WORK BREAKS

Employer to provide break

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

Length of break

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

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

(b) the 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.

S.M. 2006, c. 26, s. 19.

DIVISION 8

WAGES FOR REPORTING FOR WORK

Wage for reporting for work

51(1)       An employee who

(a) reports for work

(i) at the employer's request, or

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

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

is entitled to be paid

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

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

whichever is more.

Reporting for less than 3 hours

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

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

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

whichever is more.

Employee working longer than scheduled period

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

S.M. 2006, c. 26, s. 21.

DIVISION 9

UNPAID LEAVES

MATERNITY LEAVE

Definitions

52          In this Division,

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

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

Eligibility for maternity leave

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

S.M. 2000, c. 49, s. 2.

Length of maternity leave

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

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

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

Beginning and end of maternity leave

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

Employee to provide certificate and give notice

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

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

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

Maternity leave if notice given after stopping work

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

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

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

Length of maternity leave

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

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

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

Maternity leave where notice not given

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

End of maternity leave where notice not given

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

End of maternity leave

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.

Ending leave early

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.

S.M. 2000, c. 49, s. 3.

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.

End of parental leave

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.

Ending leave early

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.

S.M. 2000, c. 49, s. 5.

COMPASSIONATE CARE LEAVE

Definitions

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.

Entitlement to leave

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.

Physician's certificate

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.

When leave may be taken

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.

Minimum period of leave

59.2(7)     No period of leave may be less than one week's duration.

Ending leave early

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).

Notice to employer

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

Leave for part day

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

S.M. 2006, c. 26, s. 25.

BEREAVEMENT LEAVE

Unpaid bereavement leave

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

Notice to employer

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

Leave for part day

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

S.M. 2006, c. 26, s. 25.

UNPAID LEAVE FOR RESERVISTS

Definitions

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 »)

Unpaid leave for reservist

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.

Length of leave

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.

Notice of leave for 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.

Return to work after notice

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.

S.M. 2007, c. 2, s. 2.

UNPAID LEAVE FOR ORGAN DONATION

Interpretation

59.6(1)     For the purpose of this section, an employee donates an organ when he or she undergoes a surgical procedure that involves the removal of an organ or tissue from the employee for the purpose of it being transplanted into another individual.

Unpaid leave for donating an organ

59.6(2)     An employee who has been employed by the same employer for at least 30 days is entitled to unpaid leave of up to 13 weeks for the purpose of donating an organ.

Notice and medical certificate to be given to employer

59.6(3)     An employee who wishes to take a leave under this section must give the employer

(a) in writing, as much notice as is reasonable and practicable in the circumstances; and

(b) a medical certificate stating the start date and end date of the period necessary for the employee to donate the organ and recover from the procedure.

Length of leave

59.6(4)     The employee is entitled to take leave for the period set out in the medical certificate.

Extending leave

59.6(5)     The employee is entitled to extend his or her leave if, in respect of the period certified under clause (3)(b) coming to an end, the employee gives the employer a medical certificate stating that the employee requires an additional specified period to recover from donating an organ.

Extensions not to total more than 13 weeks

59.6(6)     A leave may be extended more than once, but the total extension period must not exceed 13 weeks.

Notice to employer — minimum period

59.6(7)     An employee who wishes to extend a leave must give the employer written notice at least one pay period before extending the leave, if reasonable and practicable in the circumstances.

When extended leave ends

59.6(8)     An extended leave ends on the day specified in the most recent medical certificate given to the employer.

Ending leave early

59.6(9)     The employee may end the leave earlier than provided in subsections (4) or (8) by giving the employer written notice at least one pay period before the day he or she wishes to end the leave.

S.M. 2010, c. 38, s. 2.

LEAVE FOR CITIZENSHIP CEREMONY

Unpaid leave for citizenship ceremony

59.7(1)     An employee who has been employed for at least 30 days may take up to four hours of unpaid leave to attend a citizenship ceremony to receive a certificate of citizenship, as provided for under the Citizenship Act (Canada) and regulations made under that Act.

Notice to employer

59.7(2)     Before taking a leave under this section, the employee must give the employer at least 14 days' notice or, if it is not possible for the employee to give 14 days' notice, as much notice as is reasonable and practicable in the circumstances.  If requested by the employer, the employee must provide evidence of his or her entitlement to the leave.

S.M. 2010, c. 51, s. 2.

LEAVE RELATED TO CRITICAL ILLNESS OF CHILD

Definitions

59.8(1)     The following definitions apply in this section.

"common-law partner" has the same meaning as in section 59.2. (« conjoint de fait »)

"critically ill child" has the same meaning as in the regulations made under the Employment Insurance Act (Canada). (« enfant gravement malade »)

"physician" means a physician who provides care to a child and who is entitled to practise medicine under the laws of the jurisdiction in which the care is provided. (« médecin »)

Employee entitled to leave related to critical illness of a child

59.8(2)     An employee is entitled to a leave under this section if the employee, in relation to a critically ill child, is

(a) a parent of the child;

(b) the spouse or common-law partner of a parent of the child;

(c) a person with whom the child has been placed for the purposes of adoption;

(d) the guardian or a foster parent of the child; or

(e) a person who has the care, custody or control of the child, and is considered to be like a close relative, whether or not they are related by blood or adoption.

Entitlement to leave

59.8(3)     An employee who has been employed by the same employer for at least 30 days is entitled to a leave of absence from employment of up to 37 weeks to provide care or support to a critically ill child.

Physician's certificate

59.8(4)     For an employee to be eligible for leave, a physician must issue a certificate

(a) stating that the child is a critically ill child and requires the care or support of the employee; and

(b) setting out the period during which the child requires that care or support.

Employee to give notice to employer

59.8(5)     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

59.8(6)     The employee must give the employer a copy of the physician's certificate as soon as possible.

Ending leave early

59.8(7)     Unless the employee and employer agree otherwise, an employee may end a leave earlier than the expiry of 37 weeks by giving the employer written notice at least one pay period before he or she wishes to end the leave.

S.M. 2012, c. 45, s. 2.

LEAVE RELATED TO DEATH OR DISAPPEARANCE OF CHILD

Definitions

59.9(1)     The following definitions apply in this section.

"child" means a person who is under 18 years of age. (« enfant »)

"common-law partner" has the same meaning as in section 59.2. (« conjoint de fait »)

"crime" means an offence under the Criminal Code (Canada). (« crime »)

"parent" means

(a) a parent of a child;

(b) the spouse or common-law partner of a parent of a child;

(c) a person with whom a child has been placed for the purposes of adoption;

(d) the guardian or a foster parent of a child; or

(e) a person who has the care, custody or control of a child, and is considered to be like a close relative, whether or not they are related by blood or adoption. (« parent »)

Entitlement to leave — death of child

59.9(2)     An employee who has been employed by the same employer for at least 30 days is entitled to a leave of absence from employment of up to 104 weeks if the employee is the parent of a child who has died and it is probable, considering the circumstances, that the child died as a result of a crime.

Entitlement to leave — disappearance of child

59.9(3)     An employee who has been employed by the same employer for at least 30 days is entitled to a leave of absence from employment of up to 52 weeks if the employee is the parent of a child who has disappeared and it is probable, considering the circumstances, that the child disappeared as a result of a crime.

Exception

59.9(4)     An employee is not entitled to a leave of absence under this section if he or she is charged with the crime.

Employee to give notice to employer

59.9(5)     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.

Verification

59.9(6)     The employee must provide the employer with reasonable verification of the necessity of the leave as soon as possible.

Ending leave early

59.9(7)     Unless the employee and employer agree otherwise, an employee may end a leave earlier than the expiry of the leave period by giving the employer written notice at least one pay period before he or she wishes to end the leave.

S.M. 2012, c. 45, s. 3.

GENERAL

No termination or lay-off

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.

Reinstatement

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.

Exception

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.

Employment deemed continuous

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.

Right to file complaint

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

Period of employment

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

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

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

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

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

(c) during which the person

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

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

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

S.M. 2006, c. 26, s. 27.

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

S.M. 2006, c. 26, s. 28.

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) when the employment of the employee is terminated for just cause;

(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.

S.M. 2006, c. 26, s. 28; S.M. 2011, c. 13, s. 5.

Termination by employee

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

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

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

Termination without notice by employee

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

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

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

(c) any other circumstances prescribed by regulation.

S.M. 2006, c. 26, s. 28.

63 to 65    [Repealed]

S.M. 2006, c. 26, s. 29.

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.

Content of notice

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

(a) the effective dates of the terminations;

(b) the reasons for the terminations;

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

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

(e) any other prescribed information.

S.M. 2006, c. 26, s. 30.

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.

S.M. 2006, c. 26, s. 31.

Minister may exempt employees

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

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

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

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

Employer and agent to co-operate with minister

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

JOINT PLANNING COMMITTEE

Minister may appoint joint planning committee

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

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

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

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

Appointment of employees' representatives

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

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

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

Employees to elect individuals for nomination

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

Joint planning committee to have co-chairs

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

Minister may provide terms of reference

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

Procedure

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

First meeting

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

Employer to give employee time off for committee

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

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

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

Objectives of joint planning committee

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

Employer and employees to assist joint committee

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

SUBDIVISION 3

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

Employer not to change conditions after notice

76          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.

S.M. 2006, c. 26, s. 32.

Wage in lieu of notice

77(1)       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.

Payment required despite other employment, etc.

77(2)       The requirement to pay a wage in lieu of notice under clause 61(1)(b) applies whether or not the employee has obtained other employment during the notice period.

S.M. 2006, c. 26, s. 33; S.M. 2011, c. 13, s. 6.

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.

S.M. 2006, c. 26, s. 33.

78 and 79   [Repealed]

S.M. 2006, c. 26, s. 34.

DIVISION 11

HOME WORK

Meaning of "home work"

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

Employer to maintain records

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

Director may impose conditions respecting wages

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

DIVISION 12

81          [Repealed]

S.M. 2012, c. 37, s. 5.

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.

Director may issue permit

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

Restrictions on issuing permit

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

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

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

Restricted hours of employment

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

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

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

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

S.M. 2006, c. 26, s. 35.

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.

S.M. 2006, c. 26, s. 35.

DIVISION 15

85          [Repealed]

S.M. 2013, c. 32, s. 2.

PART 3

PAYMENT OF WAGES

DIVISION 1

TIME AND METHOD OF PAYMENT OF WAGES

Wages to be paid within certain time

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

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

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

Exceptions

86(2)       Subsection (1) does not apply 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).

S.M. 2006, c. 26, s. 36.

Complaint respecting payment of wages

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

How wages are to be paid

88          An employer shall pay wages

(a) in Canadian currency;

(b) by cheque or bill of exchange drawn upon a 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).

S.M. 2002, c. 47, s. 30.

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.

Exceptions

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

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

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

Manager liable after board resigns or is removed

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

S.M. 2006, c. 26, s. 37.

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.

S.M. 2006, c. 26, s. 38.

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.

When complaint may be refused

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

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

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

Officer may file caveat, notice, financing statement

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

(a) in a land titles office,

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

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

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

(b) in the Department of Conservation and Water Stewardship, 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.

S.M. 2000, c. 35, s. 37; S.M. 2012, c. 40, s. 56.

Dismissal of complaint by order

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

Order for payment of wages

96(1)       An officer who investigates a complaint and determines that wages are due and payable to an employee 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.

S.M. 2006, c. 26, s. 40.

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.

Administrative costs

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).

No maximum amount

96.1(4)     Subsection 96(2) (maximum amount recoverable by employee) does not apply to a compensation order made under this section.

S.M. 2003, c. 7, s. 6.

Certain orders to provide for interest

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

Interest on money received by director

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

DIVISION 4

RECEIVERS

Receiver in position of employer re lien or charge

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

Receiver bound by order against employer

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

Receiver liable for wages as an employer

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

Order to receiver

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

DIVISION 5

DIRECTOR'S DEMAND TO THIRD PARTIES

Director may issue a third party demand

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

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

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

Third party reply to demand

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

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

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

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

Demand in force for six months

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

Third party is liable to the director

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

(a) the employer pays the unpaid wages;

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

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

(d) the demand is no longer in force.

Director may approve deductions by third party

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

Director may take civil action against third party

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

Director to give receipt and notice of payment

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

DIVISION 6

PRIORITY OF WAGES AND ENFORCEMENT

Employer is deemed to hold wages in trust

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

Priority of lien and charge

101         Despite any other Act and subject to sections 102 (priority of prior purchase money security interest), 102.1 (priority of certain tax liens) and 106 (priority of real property mortgage), a lien and charge under section 100 and subsection 94(2) has priority to a maximum of $2,500., or an amount prescribed, and is payable in priority over any other claim or right in the property or assets of the employer that exists before or after the wages are due and payable, including

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

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

S.M. 2005, c. 40, s. 127; S.M. 2006, c. 26, s. 41.

Priority of certain prior purchase money security interests

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

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

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

Priority of lien for tax collected and not remitted

102.1       A lien and charge under subsection 94(2) and section 100 does not take priority over a lien for taxes to which priority is given by subsection 66(3) of The Tax Administration and Miscellaneous Taxes Act.

S.M. 2005, c. 40, s. 127.

Director may file order in court

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

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

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

Collection

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

Order includes requirement to pay collection costs

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

Order is judgment of court with priority

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

S.M. 2006, c. 26, s. 42.

Director may register judgment in L.T.O.

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

Priority of caveat or notice under Judgments Act

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

Priority of real property mortgage

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

Director may allocate recovered wages among employees

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

S.M. 2006, c. 26, s. 43.

DIVISION 7

REFERRALS TO THE BOARD

Notice of right to request referral of certain orders

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

Director may reconsider order before referral

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

Person named in order may request referral

110(1)      A person named in an order made under this Part in respect of a complaint relating to unpaid wages may request the director to refer the matter to the Board, and the director shall, subject to sections 109 and 111, refer the matter.

When request must be made

110(1.1)    A request under subsection (1) must be filed with the director, along with written reasons for the request,

(a) within 30 days after the order is served on the person, in the case of an order made under subsection 96.1(1) (compensation or reinstatement); and

(b) within seven days after the order is served on the person, in the case of any other order;

or within any further time that the director may allow.

110(2)      [Repealed] S.M. 2006, c. 26, s. 44.

Director not required to refer resolved matter

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

S.M. 2003, c. 7, s. 7; S.M. 2006, c. 26, s. 44.

Deposit required

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

Chairperson may reduce deposit

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

Chairperson not to hear referral

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

S.M. 2006, c. 26, s. 45.

Receiver may request referral to board

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

DIVISION 8

SECURITY BONDS

Director may require employer to provide bond

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

Director may pay wages from proceeds of bond

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

Bond proceeds where several employees

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

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

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

Minister may apply to court for order of prohibition

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

DIVISION 9

RECIPROCAL ENFORCEMENT

Designation of reciprocating jurisdictions

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

Application to director for reciprocal enforcement

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

Reciprocal enforcement on filing in court

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

PART 4

ADMINISTRATION

DIVISION 1

DIRECTOR AND OFFICERS

Appointment of Director of Employment Standards

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

Director has powers of officer

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

Delegation

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

Director has standing before board

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

Notice to director re board hearing

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

Acting director

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

Director's authority to investigate non-compliance

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

Director may take certain action

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

Director's response to non-compliance

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

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

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

Enforcement of order

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

S.M. 2006, c. 26, s. 46.

Settlement or compromise by director

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

Discharge of liability of employer

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

When director may pay out money received

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

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

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

Powers of officer

120         For the purpose of administering or enforcing this Code, an officer has the powers set out in subsections 123(1) and (2) and the powers of an inspector under The Labour Administration Act.

S.M. 2001, c. 43, s. 41; S.M. 2006, c. 26, s. 47; S.M. 2012, c. 40, s. 56.

Officer not compellable in civil proceeding

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

S.M. 2006, c. 26, s. 48.

DIVISION 2

THE MANITOBA LABOUR BOARD

Member may act for board

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

Powers of board member

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

Board not bound by rules of evidence

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

Procedure

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

Non-application of Labour Relations Act

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

S.M. 2006, c. 26, s. 49.

Powers re application, referred order and inquiry

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

(a) at any reasonable time, enter any premises or other place in which the board, member or individual has reason to believe that an individual is

or was employed, to inspect employment records and make copies of them;

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

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

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

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

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

Further power re applications and inquiries

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

Power to determine compliance with Code

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

Board and authorized person may administer oath

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

S.M. 2006, c. 26, s. 50.

Procedure respecting applications

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

Procedure respecting referred orders

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

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

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

Parties to referred order

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

Content of board order

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

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

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

Payment of money to director under order

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

Board may award costs

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

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

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

S.M. 2006, c. 26, s. 51.

126 to 128  [Repealed]

S.M. 2006, c. 26, s. 52.

Board to conduct inquiry

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

S.M. 2006, c. 26, s. 53.

DIVISION 3

APPEAL

Appeal of board order re unpaid wages

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

Leave to appeal required

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

Time for application for leave to appeal

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

Applicant to file proof of payment to director

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

Board and director entitled to be heard

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

Costs

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

PART 5

GENERAL

DIVISION 1

PROHIBITION AGAINST UNFAIR EMPLOYMENT PRACTICES

No termination or other discriminatory action

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

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

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

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

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

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

(f) [repealed] S.M. 2012, c. 37, s. 5.

Application of The Labour Relations Act

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

S.M. 2012, c. 37, s. 5.

DIVISION 2

SINGLE EMPLOYER DECLARATION

Determination of single employer by order

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

Effect of single employer order

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

DIVISION 3

EMPLOYMENT RECORDS

Employment records to be kept by employer

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

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

(b) the date on which the employment commenced;

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

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

(d.1) copies of any work schedules for the employee as described in subsection 14(6);

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

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

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

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

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

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

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

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

(m) the date of termination of the employment;

(n) any other record prescribed by regulation.

Records when regular hours do not vary

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

Records to be kept for minimum periods

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

Employer to provide employee with pay statement

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

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

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

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

Exception where wage payments are equal

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

Records to be produced on request

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

Officer may determine amount if record incomplete

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

S.M. 2003, c. 7, s. 8; S.M. 2006, c. 26, s. 54; S.M. 2011, c. 13, s. 7.

DIVISION 4

SERVICE OF DOCUMENTS

Service of documents

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

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

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

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

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

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

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

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

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

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

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

Proof of service

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

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

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

(i) the date of receipt, or

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

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

Director or board may give directions for service

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

DIVISION 5

ADMISSIBILITY OF DOCUMENTS

Admissibility of certain documents as evidence

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

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

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

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

S.M. 2006, c. 26, s. 55.

DIVISION 6

IMMUNITY

Immunity from action

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

PART 6

OFFENCES AND PENALTIES

ADMINISTRATIVE PENALTIES

Administrative penalty

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

How penalty may be imposed

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

Amount of penalty

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

Content of notice

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

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

(b) the amount of the penalty;

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

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

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

Penalty recoverable as wages

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

No offence to be charged if penalty is paid

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

S.M. 2006, c. 26, s. 56.

Appeal to board

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

How to appeal

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

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

(b) must be filed with the director

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

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

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

Deposit

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

Chairperson may reduce deposit

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

Chairperson not to hear appeal

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

Decision of board

138.2(6)    After hearing the appeal, the board

(a) must confirm or revoke the penalty; and

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

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

(ii) the appeal was frivolous or vexatious.

Application of other provisions

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

S.M. 2006, c. 26, s. 56.

OFFENCES

Offences

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

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

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

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

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

(e) fails to give a notice of termination, or to pay a wage in lieu of notice, in contravention of subsection 61(1);

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

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

(h) [repealed] S.M. 2006, c. 26, s. 58;

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

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

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

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

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

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

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

Offence of working for less than minimum wage

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

Offence of paying less than minimum wage

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

Continuing offence

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

S.M. 2006, c. 26, s. 58; S.M. 2008, c. 42, s. 32; S.M. 2013, c. 32, s. 3.

Penalties

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

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

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

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

Penalties for subsequent offences

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

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

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

or both.

Offences by directors of corporations

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

Time limit for prosecution

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

Director and board to be served notice of appeal

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

PART 7

REGULATIONS

Regulations

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

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

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

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

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

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

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

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

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

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

(i) respecting standard hours of work, including

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

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

(iii) defining "regularly" for the purpose of subsection 14.1(1);

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

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

(k) for the purpose of clause 18(4)(b), respecting the period of time within which an employee in a business or a class of businesses must take time off instead of overtime wages;

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

(l.1) defining "climate-controlled agricultural business" for the purpose of subsection 25(2);

(m) [repealed] S.M. 2006, c. 26, s. 59;

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

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

(o.1) prescribing classes of persons for the purpose of clause (d) of the definition "family member" in subsection 59.2(1);

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

(o.2.1) prescribing conditions or limits for leaves under section 59.5 (reservists);

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

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

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

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

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

(p) respecting deductions that employers may make from wages payable to employees, including conditions under which deductions may be made;

(q) [repealed] S.M. 2006, c. 26, s. 59;

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

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

(t) [repealed] S.M. 2013, c. 32, s. 4;

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

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

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

(x) respecting deposits payable under section 111 or 138.2;

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

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

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

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

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

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

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

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

(ff) respecting the filing of complaints;

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

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

(ii) respecting the inspection of businesses;

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

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

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

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

Regulations re standard hours of work

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

Application

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

Consultations re proposed regulations

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

S.M. 2003, c. 7, s. 9; S.M. 2006, c. 26, s. 59; S.M. 2007, c. 2, s. 3; S.M. 2011, c. 13, s. 8; S.M. 2013, c. 32, s. 4.

PART 8

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

TRANSITIONAL PROVISIONS

Meaning of "former Acts"

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

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

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

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

Transitional regulations

146         The Lieutenant Governor in Council may make regulations

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

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

Continuation of documents under former Acts

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

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

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

148         [Repealed]

S.M. 2006, c. 26, s. 60.

Appointments continued

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

Matters under former Acts continued

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

Application to benefit earned after Code in force

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

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

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

152 and 153   [Repealed]

S.M. 2006, c. 26, s. 60.

Reference in legislation or document to former Act

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

155 to 162  

NOTE: These sections contained consequential amendments to other Acts that are now included in those Acts.

MISCELLANEOUS PROVISIONS

Repeal

163         The following Acts are repealed:

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

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

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

C.C.S.M. reference

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

Coming into force

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

NOTE: S.M. 1998, c. 29 came into force by proclamation on May 1, 1999.

NOTE:  Section 59.3, which was added by S.M. 2012, c. 45, s. 3, came into force on January 1, 2013.

NOTE: Section 59.8, which was added by S.M. 2012, c. 45, s. 2, came into force on June 9, 2013.

 

 


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