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S.M. 1985-86, c. 52

An Act to amend The Payment of Wages Act and Other Acts of the Legislature

(Assented to July 11, 1985)

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

PART I

AMENDMENTS TO THE PAYMENT OF WAGES ACT

Cl. 1(c) rep. and sub.

1

Clause 1(c) of The Payment of Wages Act, being chapter 21 of the Statutes of Manitoba, 1975 (chapter P15 of the Continuing Consolidation of the Statutes of Manitoba) (in this Part referred to as "the Act") is repealed and the following clause is substituted therefor:

(c) "employee" means a person engaged by another person to perform skilled or unskilled manual, clerical, domestic, professional or technical work or services but does not include an independent contractor or a person who is an employer as defined in clause (d)

Subsection 3(4) rep. and sub.

2

Subsection 3(4) of the Act is repealed and the following subsection is substituted therefor:

Wages deemed held in trust.

3(4)

Every employer shall be deemed to hold the wages due or accruing due to an employee in trust for the employee and for payment of the wages over to the employee in the manner and at the time provided by law and the employee has a lien and charge on the property and assets of the employer whether or not the amount of the wages has been kept separate and apart by the employer and whether or not the employer is in receivership.

Sec. 5 rep. and sub.

3

Section 5 of the Act is repealed and the following section is substituted therefor:

Liability of directors and officers of corporation.

5

Notwithstanding the provisions of any other Act of the Legislature, every director and officer of a corporation is liable jointly and severally for

(a) the unpaid wages of every employee of the corporation for an amount not exceeding 6 months wages; and

(b) all unpaid vacation wages of every employee of the corporation, accrued over any period of time;

and the provisions of this Act, including, without limiting the generality of the foregoing, sections 7 and 17, apply, mutatis mutandis, to the recovery of unpaid wages from a director or officer of the corporation.

Sec. 6 am.

4

Section 6 of the Act is amended by adding thereto, immediately after the word "board" in the 3rd line thereof, the words "or director".

Subsec. 7(2) am.

5

Subsection 7(2) of the Act is amended by striking out the words "a county court" in the 2nd line thereof and substituting therefor the words "the Court of Queen's Bench".

Subsec. 7(4) am.

6

Subsection 7(4) of the Act is amended by striking out the words "county court office" in the 2nd line thereof and substituting therefor the words "office of the Court of Queen's Bench".

Subsecs. 8(3.1) to (3.7) added.

7

Section 8 of the Act is amended by adding thereto, immediately after subsection (3) thereof, the following subsections:

Order directed to receiver or receiver-manager.

8(3.1)

Where a receiver or a receiver-manager has been appointed by a court or under an instrument to administer the affairs of an employer, the director may make an order under subsection (3) in respect of the unpaid wages of the employees of the employer and, notwithstanding any order of a court and without leave of a court, the order, in addition to ordering the employer to pay the wages, shall be directed to the receiver or receiver-manager.

Receiver or receiver-manager to comply with director's order.

8(3.2)

Where an order is directed to a receiver or receiver-manager under subsection (3.1) and the receiver or the receiver-manager, as the case may be, does not, in accordance with subsection (5), request the director to refer the matter to the board for a determination, the receiver or receiver-manager, as the case may be, shall comply with the order in accordance with this Act and section 96.1 of The Corporations Act as may be necessary to comply with the order.

Receiver to comply with board's order.

8(3.3)

Where a receiver or receiver-manager has, in accordance with subsection (5), requested the director to refer a matter to the board for a determination and the board makes an order under section 15 against the employer for the payment of wages, the board shall also direct the order to the receiver or receiver-manager, as the case may be, and the receiver or receivermanager shall comply with the order in the manner set out in subsection (3.2).

Order against corporate director.

8(3.4)

Where the employer is a corporation, the director may make an order requiring the payment of wages by a director or officer of that corporation whether or not the director has previously made an order against the corporation in respect of the impaid wages.

Corporation director may recover from corporation.

8(3.5)

Subject to subsection (3.7), where an order for the payment of wages is made against a director or officer of a corporation, the director or officer of the corporation, upon complying with the order, is vested with all the rights to take action or institute proceedings against the corporation to recover the moneys paid by the director or officer of the corporation to comply with the order.

Copy of order to corporation.

8(3.6)

Where an employer is a corporation and no order in respect of the unpaid wages of the employees is made against the employer, a copy of any order in respect of the unpaid wages of the employees made by the director against a director or officer of that corporation shall be served on or sent to the corporation in accordance with section 23.

Corporation or receiver may request referral to board.

8(3.7)

Notwithstanding subsection (3.5), where the director has made an order for the payment of wages against a director or officer of a corporation, the corporation or receiver or receiver-manager of that corporation may, in accordance with subsection (5), request the director to refer the matter to the board for a determination of the liability of the director or officer of the corporation.

Subsec. 8(6) rep. and sub.

8

Subsection 8(6) of the Act is repealed and the following subsection is substituted therefor:

Filing of order in Queen's Bench.

8(6)

Where

(a) a person fails or refuses to comply with an order made under this section and the time for requesting a referral to the board under subsection (5) has expired; or

(b) a person fails or refuses to comply with an order of the board made under section 15 and the time for an appeal against the order has expired;

the director may file a copy of the order at the nearest administrative centre of the Court of Queen's Bench, within the meaning of section 27 of The Queen's Bench Act, where the employer carries on business or formerly carried on business; and thereupon the order shall be deemed to be a judgment of the Court of Queen's Bench in favour of the director.

Subsec. 13(4) am.

9

Subsection 13(4) of the Act is amended by striking out the words "of the director of the board, or a County Court, as the case may be," in the 4th and 5th lines thereof and substituting therefor the words "made under this Act".

Sec. 16 rep. and sub.

10

Section 16 of the Act is repealed and the following section is substituted therefor:

Appeal.

16(1)

An appeal lies to the Court of Appeal from any final order or decision of the board upon any question involving the jurisdiction of the board or upon any point of law; and section 58 of The Public Utilities Board Act except clause 58(1) (c) thereof applies, mutatis mutandis, to any appeal taken.

Director to be heard.

16(2)

The director is entitled to be heard, by counsel or otherwise, upon the argument of any appeal.

Evidence of compliance with subsection 15(2).

16(3)

Where the appellant under this section is not an employee, the appellant shall at the time of filing the appeal, file evidence of compliance with an order of the board under subsection 15(2); and upon completion of the hearing the Court of Appeal may order the disposition of the moneys paid to the director in such manner as the court considers just.

Subsec. 17(4) rep. and sub.

11

Subsection 17(4) of the Act is repealed and the following subsection is substituted therefor:

Filing of order in court.

17(4)

A copy of an order to pay wages made under subsection (3) may be filed by the director at the nearest administrative centre of the Court of Queen's Bench, within meaning of section 27 of The Queen's Bench Act, where the employer carries on business or formerly carried on business; and thereupon the order shall be deemed to be a judgment of the Court of Queen's Bench in favour of the director.

Sec. 19 rep. and sub.

12

Section 19 of the Act is repealed and the following section is substituted therefor:

Establishment of fund.

19(1)

The Lieutenant Governor in Council may establish in the accounts of the government an account to be known as the "Payment of Wages Fund" (hereinafter in this section referred to as "the fund") to which shall be credited moneys authorized under an Act of the Legislature to be so paid and applied and any moneys collected by the director and paid into the fund in accordance with this section, and to which may be charged moneys paid to employees in accordance with the provisions of the regulations in respect of unpaid wages due and payable to the employees by their employers.

Rights of payees vested in director.

19(2)

Where, under the regulations, money charged to the fund is paid from the fund to an employee whose employer has failed or refused to pay wages due and payable to the employee, all the rights of the employee to payment of all unpaid wages due and payable to that employee by that employer vest in the director who may take actions and proceedings under this Act or any other Act or in any court, to collect the unpaid wages.

Crediting of moneys collected.

19(3)

Subject to subsection (4), any moneys collected by the director under subsection (2) shall be credited to the fund.

Where collections exceed payments from fund.

19(4)

Where the amount of money collected by the director under subsection (2) in respect of the wages that were due and payable to an employee by an employer exceeds the amount of money previously paid from the fund to that employee in respect of the unpaid wages due and payable to that employee from that employer, the excess shall be paid to the employee and not credited to the fund.

Sec. 23.1 rep.

13

Section 23.1 of the Act is repealed.

PART II

AMENDMENTS TO THE EMPLOYMENT STANDARDS ACT

Subsecs. 35(19) to (23) rep. and sub.

14

Subsections 35(19) to (23) of The Employment Standards Act, being chapter E110 of the Revised Statutes are repealed and the following subsections are substituted therefor:

Appeal to Court of Appeal.

35(19)

An appeal lies to the Court of Appeal from any final order or decision of the board made under this section upon any question involving the jurisdiction of the board or upon any point of law; and section 58 of The Public Utilities Board Act, except clause 58(1) (c) thereof applies, mutatis mutandis, to any appeal taken.

Payment into court.

35(20)

Where the appellant under this section is an employer, the appellant shall at the time of filing the appeal pay into the Court of Appeal the amount ordered to be paid under subsection (13) or (14) or by the board on an appeal under subsection (18), as the case may be, and upon completion of the hearing of the appeal, the Court of Appeal may order the disposition of the moneys paid into court in such manner as the Court of Appeal deems just.

PART III

AMENDMENTS TO THE VACATIONS WITH PAY ACT

Subsecs. 14(4) to (8) rep. and sub.

15

Subsections 14(4) to (8) of The Vacations With Pay Act, being chapter V20 of the Revised Statutes are repealed and the following subsection is substituted therefor:

Appeal to Court of Appeal.

14(4)

An appeal lies to the Court of Appeal from an order or decision made by the board under subsection (1) with respect to a matter under clause (1) (d), upon any question involving the jurisdiction of the board or upon a point of law; and section 58 of The Public Utilities Board Act, except clause 58(1)(c) thereof applies, mutatis mutandis, to any appeal taken.

Commencement of Act.

16

This Act comes into force on the day it receives the royal assent.