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The Employment Standards Act
This is an unofficial archived version of The Employment Standards Act
as enacted by SM 1987-88, c. 9 on July 17, 1987.

R.S.M. 1987, c. E110

The Employment Standards Act

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

Definitions.

1

In this Act except where expressly otherwise provided,

"adolescent" means a person who has reached his 16th birthday but has not reached his 18th birthday; ("adolescent")

"apprentice" means a person at least 16 years of age who enters into a written agreement with an employer to learn a skilled trade requiring a minimum of 4,000 hours of reasonably continuous employment, and which provides a program of practical experience and related technical instruction for that person; ("apprenti")

"chief inspector" means the chief inspector of a division of the department; ("inspecteur en chef)

"child" means a person under the age of 16 years; ("enfant")

"continuously-operating plant" means

(a) an industrial plant, or

(b) an establishment, factory, works, or undertaking, in or about any industry,

in which, in each seven day period, operations once commenced normally continue day and night without cessation until the completion of the regularly scheduled operations for that period; ("établissement à production ininterrompue")

"department" means The Department of Labour; ("ministère")

"employee" means a person engaged by another to perform skilled or unskilled manual, clerical, domestic or technical work or service, or professional work or service, but does not include

(a) an independent contractor,

(b) subject to section 2, a person employed in agriculture, fishing, fur farming, or dairy farming, or in the growing of horticultural or market garden products for sale,

(c) a person employed in domestic service in a private family home and remunerated by a member of that family where the person is not employed for more than 24 hours in a week by the same employer,

(d) a person employed in a private family home and paid by a member of that family where the person is employed as a sitter to attend primarily to the needs of a child who is a member of the household or as a companion to attend primarily to the needs of an aged, infirm or ill member of the household,

(e) a person working on a voluntary basis in a religious, philanthropic, political or patriotic institution,

(f) a person who as beneficiary under a rehabilitation or therapeutic project or plan is given employment,

(g) a person who is registered or enrolled and employed as a student-in-training in a course leading to professional status in a profession, the practice of which is governed by an Act of the Legislature that applies solely to the practice of that profession,

(h) a person who is qualified to practise a profession under an Act of the Legislature that applies solely to, and governs the practice of, that profession and who is practising or employed in that profession; ("employé")

"employer" means a person, firm, corporation, principal, agent, manager, representative, contractor, or sub-contractor, having control and direction of, or responsible directly or indirectly for the engagement or employment of, or payment of wages to, a person employed; ("employeur")

"employment" means service, work, or duties undertaken under a written or oral agreement between an employer and a person employed whereby the person employed agrees to render any services or perform manual, clerical, or technical work, or duties, whether the work is, or the services or duties are, skilled or unskilled; ("emploi")

"general holiday" means New Year's Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, or Christmas Day; ("jour férié")

"hours of work" means the hours or parts thereof during which a person employed works or performs services for an employer or at the request of, or with the permission of, an employer is present and available for work or service under an agreement of employment; ("heures de travail")

"independent contractor" means a person who undertakes with another person to produce a given result but so that, in the actual execution of the work, he is not under the orders or control of the person for whom he does it, and may use his own discretion in things not specified beforehand; ("entrepreneur indépendant")

"industry" or "business" includes any calling, trade, profession, work, occupation, undertaking or service carried out or performed by any person, public body or charitable, religious philanthropic, political, patriotic or fraternal organization, including the provision of services in a family home, but excepting the work or occupation of farming; ("industrie ou entreprise")

"inspector" means an inspector of the department, and includes the chief inspector of a division thereof; ("inspecteur")

"minister" means the member of the Executive Council who is charged by the Lieutenant Governor in Council with the administration of this Act; ("ministre")

"overtime" means hours of work in excess of standard hours of work; ("heures supplémentaires")

"parent" includes a person who is the guardian of, or who has the legal custody of, or control over, or direct benefit from the wages of a child; ("parent")

"rate of wages" means

(a) the basis of calculation of the wages paid to a person employed whether that basis is remuneration for a period of time worked or for piece work or is any other incentive basis, and

(b) where the basis of calculation of the wages paid to a person employed is a combination of such bases of calculation, that combination of bases; ("taux de salaire")

"regular hours" means the hours or parts thereof, not exceeding standard hours, during which, from day to day, a person employed is required by the employer to be present for, and engaged upon, the work or services contemplated by the employment; ("heures normales")

"regulations" means regulations or orders made under this Act; ("règlements")

"seasonal industry" means an industry that in each year ordinarily suspends production operations completely for one or more periods of at least three weeks each, by reason of fluctuations in market demands characteristic of the industry or consequent upon the ripening of crops; ("industrie saisonnière")

"standard hours of work" means the standard hours of work described in subsection 32(1); ("durée normale du travail")

"trade union" means any organization of employees formed for purposes that include the regulation of relations between employers and employees; ("syndicat ouvrier")

"week" means any period of seven successive days. ("semaine")

Sellers of horticultural or market garden products.

2

A person does not cease to be an employee solely by reason of the fact that he is employed in selling horticultural or market garden products grown by another person.

Object and purpose.

3(1)

The object and purpose of this Act is to secure reasonable hours of employment and to establish minimum standards and conditions of employment.

Application of Act.

3(2)

This Act applies only as far as the Legislature has jurisdiction to enact, and it is declared that the purpose and intent of the Legislature is to confine the provisions of this Act within the competence of the Legislature, and every provision hereof shall be construed so as to give effect to that purpose and intent; and, without restricting the generality of the foregoing, it is declared that this Act does not apply to any industry, business, or undertaking in respect of matters, the legislative jurisdiction as to which, with respect to that industry, business, or undertaking, is vested in the Parliament of Canada.

Application of Act to Crown.

4(1)

Subject to subsection (2) this Act applies

(a) to the Crown;

(b) to agencies of the Crown; and

(c) to the employees of the Crown and agencies of the Crown.

Exemptions from application of Act

4(2)

This Act does not apply, to the extent provided in the regulations, to any employers or employees in an industry or business exempt under the regulations, or to any class of employers or class of employees exempt under the regulations.

Administration by minister.

5(1)

The minister is responsible for the general administration of this Act.

Payment of expenses.

5(2)

All expenses properly incurred in the administration of this Act shall be paid out of the Consolidated Fund with moneys authorized by an Act of the Legislature to be so paid and applied and shall be charged to the proper appropriation of the department.

PART I

GENERAL

Records required to be kept by employers.

6(1)

Unless the minister authorizes him in writing to dispense therewith, every employer shall maintain in his principal place of business in the province a true and correct record in the English language or, if he is a French-speaking person a similar record in the French language, of the following particulars in respect of each of his employees:

(a) The hours worked or on duty each day, showing overtime hours separately.

(b) The rate of wages at which the employee is employed.

(c) The dates upon which wages have been paid to each employee.

(d) The amount paid on each such occasion.

(e) The amount of every deduction made from wages and the particulars thereof.

(f) The date of commencement of present term of employment.

(g) The date and particulars of each change in rate of wages.

(h) The name, last known address and occupation of the employee.

(i) Where an employee works or is on duty on a general holiday, the rate of wages paid therefor.

(j) Each annual vacation granted, showing

(i) the date of commencement and the date of completion of the vacation;

(ii) the period of employment in respect of which the vacation was given;

(iii) the amount of vacation pay given and the date upon which it was paid.

(k) The amount of money paid in lieu of an annual vacation upon termination of employment, and the date of such payment.

(l) The date when employment ceases.

Method of keeping records.

6(2)

The record of hours referred to in clause (l)(a) shall be recorded daily, except that an employer who pays an employee by the week or the month may record the standard hours of work and thereafter keep a daily record of overtime hours only.

Retention of records.

6(3)

The record required under this section shall be maintained and preserved by the employer for a period of 12 months from the time each record was made, except that the record referred to in clause (1)(j) shall be preserved for three years.

Pay statement for employees.

6(4)

An employer shall furnish to each employee a written statement at the time of paying wages showing the hours paid for, the rate of pay, the overtime hours, the deductions, if any, and the net amount paid to the employee.

Where employer deemed to comply with subsection (4).

6(5)

An employer shall be deemed to have complied with subsection (4) in respect of an employee who is paid wages that are equal on each date upon which wages are paid to him (hereinafter in this subsection referred to as "pay day") if

(a) the employer gives to the employee at the beginning of any period during which the wages of the employee are equal on each pay day, a statement indicating

(i) the rate of pay,

(ii) the amount of wages to be paid on each pay day,

(iii) the amounts of deductions to be made from the wages on each pay day, and

(iv) the net amount to be paid to the employee on each pay day; and

(b) the employer gives a similar statement to that mentioned in clause (a) to the employee each time there is any change in the wages of the employee or any change in the amounts of deductions from the wages.

Furnishing information on request.

6(6)

Notwithstanding subsection (5), the employer shall furnish to the employee at any time, on request of the employee or on the direction of the minister, the information mentioned in subsection (4).

Production of record.

6(7)

An employer shall produce the record required under this section to any inspector upon his request and make it available for his inspection; and shall furnish copies of any part thereof to the minister upon written demand by him.

Conditions respecting take-home work.

7(1)

Every employer engaging an employee to do take-home work shall

(a) first register with the minister, in writing, notice of his intention to engage in this type of operation; and

(b) maintain and upon demand furnish to the minister, a record of the name and address of each person performing such work, with full particulars of the type and amount of work done by the employee, the amount paid, the rate of wages therefor, and any amounts deducted from wages earned.

Conditions imposed by minister.

7(2)

The minister may impose conditions and limitations upon employment involving take-home work when, in his absolute discretion, he believes it necessary or advisable to do so to secure conformity to the intent and purpose of this Act in so far as remuneration is concerned.

Definition of "take-home" work.

7(3)

For the purpose of this section "take-home work" means work that the employee performs at the place where he resides; but does not include the selling of goods or services.

Jurisdiction of Labour Board as to certain matters.

8

If in the course of the administration of this Act, otherwise than in proceedings in any court of law, a question arises as to whether a person is an independent contractor or an employee or an employer, The Manitoba Labour Board shall decide the question.

Employment of children.

9(1)

Subject as in this Act specifically otherwise provided,

(a) no child shall be employed except after a written permit has been procured from the minister;

(b) no child for whose employment a permit has been procured shall be employed otherwise than in accordance with the permit or by anyone other than the employer named in the permit;

(c) no child shall be employed in such a manner, or upon such work or service, that its safety, health, or moral well-being, may be hurtfully affected.

Agreements by adolescent.

9(2)

An adolescent who enters into employment is liable thereon and has the benefit thereof as if the adolescent were an adult.

Regulations.

10

For the purpose of carrying out the provisions of this Act, according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation or order made under, and in accordance with the authority granted by, this section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations and orders

(a) respecting the measures that must be taken or precautions that must be observed to secure proper sanitation and ventilation in work places and to prevent overcrowding therein;

(b) suspending the application of this Act, or of any provision thereof, to any industry, employer, or employee, or to any group, kind, or class of industries, employers, or employees, specified in the regulations or orders, or to any area of the province designated in the regulations or orders;

(c) exempting any industry or business, or any class of employers or class of employees, from the application of this Act or of any provision of this Act or of any regulation under this Act or of any provision of a regulation under this Act;

(d) prescribing or establishing terms or conditions of employment in any industry or business exempt from the application of any provision of this Act, or for any class of employers or class of employees exempt from the application of any provision of this Act to replace the terms and conditions provided in the provisions from which the industry or business or class of employers or class of employees is exempted;

(e) providing for the inspection of industries;

(f) providing for the production of books, accounts, and records, by employers;

(g) requiring the use in industries or by employers of mechanical devices for ascertaining or assisting in ascertaining, or for recording, the time worked by employees;

(h) respecting the procedure to be adopted by a board under this Act in holding inquiries;

(i) respecting standards governing the conditions of labour for employees, including matters relating to surroundings or conditions of labour, sanitary or otherwise, that affect the health or morals of employees;

(j) respecting deductions that may be made from wages or from any other payment or allowance payable to an employee;

(k) prescribing circumstances which constitute or do not constitute the performance of work by employees in respect of which wages are required to be paid.

Service of documents.

11(1)

Any notice, order, requisition, summons or other paper or document required or authorized to be served or sent to any person for the purposes of this Act, may be served or sent by delivering or leaving it or a true copy thereof

(a) to or at the residence of the person on or to whom it is to be served or sent; or

(b) where that person is an employer, to or with his agent or to or with any person who is apparently in charge of the establishment or place of business of the employer; or

(c) where that person is a corporation, a trade union or an association, to or at the residence of any person who is an officer or director of the corporation, trade union or association.

Service by mail.

11(2)

A notice, order, requisition, summons, or other paper or document, to which subsection (1) refers may also be served or sent by post by mailing it by registered mail with postage prepaid and enclosed in a package addressed to the person for whom it is intended and having attached thereto an official "Acknowledgment of Receipt" form issued from the Canada Post Office; and, if so served or sent, the paper or document enclosed in the package shall, unless the contrary is proved, be deemed to have been served and received respectively on the day of the date of receipt thereof shown on the "Acknowledgment of Receipt" form over the signature of the person acknowledging receipt of the package.

Proof of service.

11(3)

Subject to subsection (4), in proving a service or sending made or done under subsection (2), it is sufficient to prove that the package was properly addressed and registered and to produce the "Acknowledgment of Receipt" form showing the date of receipt, signed by the person acknowledging receipt of the package, and stamped with an official stamp and otherwise duly completed by the office of origin and the office of destination of Canada Post Office.

Service by mail on employers.

11(4)

Where a paper or document to which subsection (2) refers is required to be served upon, or sent to, an employer, the package containing it shall, for the purposes of subsections (2) and (3), be deemed to be properly addressed if addressed to the establishment or place of business of which he has charge, with the addition of the proper postal address thereof, but without naming the person who is the employer.

Sunday labour not authorized.

12

Nothing in this Act authorizes the doing of any work on Sunday, that is prohibited by law.

Inquiries by board respecting employers and employees.

13(1)

The Manitoba Labour Board may, and when directed by the minister shall, hold inquiries for the purpose of investigating the facts with respect to any persons engaged or working in, or about, or in connection with, any industry as members or alleged members of a partnership or association, or as parties to an agreement or scheme of profit sharing or a joint adventure, including the investigation of the contractual relationships of the persons so engaged or working.

Order of board after inquiry.

13(2)

If, after the holding of an inquiry under subsection (1), the board is of the opinion that the partnership, association, agreement, scheme, or joint adventure, is intended to have, or has, the effect of defeating the purpose and intent of this Act, the board may make an order declaring that, for the purposes of this Act, such of those persons as are specified in the order are employees and that such of those persons as are specified in the order are employers.

General inquiries.

13(3)

The board, with the approval of the minister, may hold inquiries respecting any matters arising out of the operation or administration of this Act, and shall report its findings thereon to the minister.

Special permits for certain employments.

14

The minister may issue a special permit to any employer, upon application therefor in writing,

(a) for the employment of, and fixing a wage or graduated scale of wages to be paid to, a handicapped employee, and may vary the permit or any provision thereof; or

(b) authorizing employees to work overtime in excess of what is otherwise permissible; or

(c) for exemption or partial exemption from the application of any order made pursuant to powers conferred by this Act.

OFFENCES AND PENALTIES

General offence and penalty.

15(1)

Every person who contravenes, or neglects, omits, or fails, to observe, any provision of this Act or of the regulations, or any order of the minister given under this Act or the regulations is guilty of an offence and, if no other penalty is herein provided therefor, is liable, on summary conviction, to a fine not exceeding, in the case of an employer, $500. and, in the case of an employee, $100., and in either case to imprisonment for a term not exceeding three months, or to both.

Continuing offence.

15(2)

Where the contravention, neglect, omission, or failure, continues for more than one day, the person is guilty of a separate offence for each day that it continues.

Order to pay wages found due.

15(3)

Where an employer who

(a) pays an employee a wage less than the minimum wage prescribed in the regulations made under Part II; or

(b) fails to pay to an employee wages at overtime rates to which he is entitled under Part III; or

(c) fails to pay to an employee moneys payable in a case of termination of employment; or

(d) fails or refuses to pay an employee wages in accordance with Part IV;

is convicted of an offence under this Act, the magistrate shall find the amount due by the employer to the employee after crediting any amount actually paid to the employee by the employer on account of the wages claimed; and he shall, in addition to any fine or other penalty which he may impose, order the employer to pay to the employee the amount so found to be due, together with such costs as he may allow to the employee.

One year limitation.

15(4)

No order for the payment of wages due and payable more than one year before the date of the information and complaint shall be made under subsection (3).

Civil action not barred by this section.

15(5)

Nothing in this section curtails, abridges, or defeats, any civil or other remedy for the recovery of wages by an employee from his employer except in so far as any order has been made under subsection (3) for the payment of wages and only with respect to the wages so ordered to be paid.

Agreement to work for less than minimum wage.

15(6)

An agreement made by an employee to work for less than the fixed minimum wage is not a defence in any action by the employee to recover his minimum wages or in any prosecution under this Act or the regulations.

Responsibility of parent for employment of child or adolescent.

16

Unless the employment is without the consent, connivance, or wilful default of the parent, the parent of any child or adolescent in contravention of this Act is guilty of an offence and is liable, on summary conviction, for each offence, to a fine of not more than $50., and, in default of immediate payment, to imprisonment for a term not exceeding three months.

Notice of appeal.

17(1)

A person convicted, or against whom an order is made, under this Part and who appeals from the conviction or order, or both, shall, notwithstanding any other Act or law in force in the province, file and serve notice of his intention to appeal in the manner provided by law, within 10 days of the making of the conviction or order.

Enforcement by distress.

17(2)

In default of payment by an employer of wages found to be due by him, the magistrate may issue his warrant to levy the amount of the wages and costs by seizure and sale of the goods and chattels of the employer and The Wages Recovery Act applies to the case as in the case of a warrant of distress issued under that Act.

Collusion by employee.

18

Where an employee, by collusion with his employer or otherwise, works for less than the minimum wage to which he is entitled under any Part of this Act, or directly or indirectly returns to his employer any part of his wages, by reason of which action the wages actually received and retained by him are reduced to an amount less than the minimum wage to which he is entitled, the employee and his employer are each guilty of an offence and liable, on summary conviction, to a fine of not more than $100. in addition to any other penalty to which he might be liable.

Power of magistrate in addition to or instead of inflicting fine.

19(1)

Where a place of employment is not kept in conformity with this Act, the magistrate, in addition to or instead of inflicting a fine, penalty, or other punishment, upon the employer, may order certain means to be adopted by the employer, within the time fixed in the order, for the purpose of bringing his place of employment into conformity with this Act.

Offence and penalty.

19(2)

The magistrate may also, upon application, enlarge the time so fixed; but where, after the expiration of the time as originally fixed or enlarged by subsequent order, the order is not complied with, the employer is guilty of an offence and is liable, on summary conviction, to a fine not exceeding $50. for every day that the non-compliance continues.

Employer exempted from fine or conviction of actual offender.

20(1)

Where an employer is charged with an offence against this Act, he is entitled, upon information duly laid by him, to have any other person whom he charges as the actual offender brought before the magistrate at the time appointed for hearing the charge.

Conviction of another person.

20(2)

Where, after the commission of the offence has been proved, the employer proves to the satisfaction of the court that he has used due diligence to enforce the execution of the Act, and that the other person committed the offence in question without his knowledge, consent, or connivance, the other person shall be summarily convicted of the offence, and the employer is exempt from any fine, penalty, or punishment.

Wages a debt.

21

Wages, including wages at overtime rates, that under this Act are due and payable by an employer to an employee are a debt due from the employer to an employee, and, subject to subsection 15(5), may be recovered by action in a court of competent jurisdiction.

Wages collected by minister.

22

Where the minister or the department has received or collected from an employer, wages or other remuneration for and on behalf of an employee, and the employee cannot be found within 6 years of the date on which the wages or other remuneration is received or collected, the amount so received or collected may be transferred from any account to which it has been credited to the Consolidated Fund, but, if after the moneys have been so transferred, the employee makes a claim therefor in writing, the Minister of Finance shall, on the written requisition of the minister, pay the amount to the employee from the Consolidated Fund.

Employer ordered to provide security for payment of wages.

23

Where an employer has been convicted of an offence under this Act or under The Construction Industry Wages Act with respect to the failure to pay wages or the failure to pay wages at rates required under this Act or The Construction Industry Wages Act, as the case may be, the minister may in writing order the employer to deposit with the Minister of Finance cash or a bond or other security in such sum not exceeding $1,000. as the minister may stipulate in the order to be available for settlement of any judgment or order of a court for wages; and if the employer employs any person before the cash, bond, or other security is deposited with the Minister of Finance, he is guilty of an offence.

PART II

MINIMUM WAGES

Definitions.

24

In this Part

"board" means a minimum wage board constituted and established under this Part; ("commission")

"minimum overtime rate" means a rate of wages 1 1/2 times as great as the minimum rate prescribed under this Part. ("taux minimum des heures supplémentaires")

Establishment of boards.

25(1)

For the purposes of this Part, the Lieutenant Governor in Council may establish and constitute one or more minimum wage boards, each of which shall be appointed by order in council and shall consist of five or more persons as may be determined by the Lieutenant Governor in Council, of whom

(a) one member, who shall be named in the order as chairman of the board, and who may be a person holding some other office, position or employment in the public service of the province, shall be a person who is disinterested and impartial as between employers and employees;

(b) two or more persons shall be selected as representative of the employer point of view; and

(c) a number of persons equal to the number selected for appointment as provided in clause (b) shall be selected as representative of the employee point of view.

Duties.

25(2)

Each board shall perform the duties herein assigned to minimum wage boards within such area as may be designated in the order establishing it.

Retirement of members.

25(3)

The order establishing a board shall allot to members such terms of office as shall ensure that one member selected for appointment as provided in clause (l)(b), and one member selected for appointment as provided in clause (1)(c), shall retire each year.

Term of office.

25(4)

Subject to subsection (3), each member of a board other than the chairman, unless sooner removed from office, shall hold office for a number of years from the date of his appointment equal to the number of members of the board selected for appointment as provided in clause (l)(b), and thereafter until his successor is appointed, but may be re-appointed for a further term.

Term of member filling a vacancy.

25(5)

If any member of a board other than the chairman ceases to be a member prior to the expiration of his term of office, any person appointed to fill the vacancy so created shall, unless sooner removed by the Lieutenant Governor in Council, hold office for the remainder of the term of office of the person in whose place he is appointed, and thereafter until his successor is appointed.

Compensation for services.

25(6)

The members of minimum wage boards, other than any officer of the department, shall be paid such remuneration for their services as may be fixed by the Lieutenant Governor in Council; and shall be reimbursed for such reasonable out-of-pocket expenses incurred by them in the discharge of their duties as may be approved by the Minister of Finance.

Recommendations by board.

26

A board upon the written authorization of the minister may, with respect to the area for which it is appointed, make recommendations in writing respecting

(a) standards of minimum wages to be paid to employees

(i) of different ages, or

(ii) who are inexperienced, handicapped, or special employees;

(b) the maximum proportion of employees classified under sub-clause (a)(ii) to other employees in the same employment; and

(c) the maximum amount, if any, that may be deducted from the prescribed minimum wage in cases where the employer furnishes to the employee board, lodging, uniforms, laundry, or other service.

Regulations following recommendations of boards.

27(1)

The Lieutenant Governor in Council may make regulations embodying and establishing, in whole or in part and with such amendments, additions, or deletions, as the Lieutenant Governor in Council may deem desirable, the recommendations of a minimum wage board.

Ancillary regulations.

27(2)

For the purpose of carrying out the provisions of this Part and the regulations according to their intent, the Lieutenant Governor in Council may make such regulations as are ancillary thereto, and are not inconsistent therewith, as he deems necessary or expedient for that purpose.

Effect of regulations.

27(3)

Notwithstanding The Regulations Act, a regulation made under, and in accordance with the authority granted by, this section has effect only at the expiration of one month from the publication thereof in The Manitoba Gazette; but thereafter has force and effect as law.

Inquiries, etc., by boards.

28(1)

For the purpose of preparing recommendations as mentioned in section 26 a board shall conduct such inquiries, and receive from interested persons such representations, as the board deems necessary or advisable.

Inquiries, at request of minister.

28(2)

A board shall, at the direction of the minister, inquire into the conditions of labour prevailing in any occupation, the hours of employment therein, and the wages payable therefor.

Requirement for board meeting.

28(3)

A majority of the members of a board may require the chairman to convene a meeting of the board for the purpose of considering whether, recommendations shall be made to the minister that an inquiry be made into matters mentioned in subsection (2); and, if so, what those recommendations should be.

Powers of board conducting inquiry.

28(4)

When conducting an inquiry for the purposes mentioned in subsections (1) and (2), a board has the powers, protection, and privileges, granted to commissioners appointed under Part V of The Manitoba Evidence Act.

Considerations in basing recommendations.

28(5)

A board, in settling the recommendations it makes to the Lieutenant Governor in Council, shall take into consideration, and be guided by, the cost to an employee of purchasing the necessities of life and health.

Payment of minimum wages required.

29(1)

Every employer shall pay to each of his employees wages at a rate of not less than that prescribed in regulations made under this Part.

Limitation on prosecution under subsec. (1).

29(2)

A prosecution for contravening, or neglecting, omitting or failing to observe, subsection (1) may be instituted at any time within one year of the date of the alleged offence.

PART III

HOURS AND CONDITIONS OF WORK

Definitions.

30

In this Part

"board" means The Manitoba Labour Board; ("Commission")

"member of the family" means a wife, husband, parent, grandparent, step-parent, child, grandchild, step-child, brother, sister, halfbrother, half-sister, or first cousin; ("membre de la famille")

"overtime rates" with respect to an employee, means a rate of wages 1.5 times as great as the rate of wages ordinarily payable to him for work done; ("taux des heures supplémentaires")

"plant" means any establishment, works, or undertaking, in or about any industry; ("établissement")

"regular rates" with respect to an employee, means the rate of wages ordinarily paid him for work done in regular hours. ("taux normal")

Where Act not applicable.

31(1)

Sections 32, 33, and 34 do not apply to

(a) a person employed in a plant in which only members of the family of the employer are employed;

(b) a travelling salesman who

(i) is employed in an incentive basis, or

(ii) regularly travels more than 10 miles in a day in the course of his duties.

Effect of suspension of application.

31(2)

Where the application of this Part to an industry or plant or to a group, kind, or class, of industries or plants or in any area has been suspended by the regulations, this Part does not apply thereto or therein during the prescribed period of suspension.

Standard hours of work.

32(1)

Standard hours of work for an employee are

(a) 40 hours in any week and eight hours in any day; or

(b) in the case of an employee to whom the order or collective agreement applies, 40 hours in any week and the number of hours in any day prescribed as the maximum number of working hours for that day under an order of the board made under subsection 33(1) or under a collective agreement described under subsection 33(1); or

(c) in the case of an employee to whom the order applies, the number of hours in any month, week or day specified as the maximum number of working hours in that month, week or day under an order of the board made under subsection 33(2) or (3); or

(d) in the case of an employee to whom the regulation applies, the number of regular working hours in any day, week or month prescribed in a regulation made under The Construction Industry Wages Act as the maximum number of working hours that the employee may be required to work in any day, week or month before being paid at overtime rates.

Overtime rates.

32(2)

Where an employee works for more than the standard hours, the employer shall pay to him not less than overtime rates for each hour or part of an hour he is required to work on that day or in that week, as the case may be, in excess of the standard hours of work for that day or for that week, as the case may be; but those daily or weekly hours shall not include any interval allowed to the employee for meals, if the employee is not, in fact, on duty during that interval.

Variation in working hours.

33(1)

Where an employer desires to establish a working week, not exceeding 40 hours for employees, to be worked in less than five days, he may, with the approval of the board, granted by order on application or by a collective agreement with a trade union that is the certified bargaining agent for his employees, or by an agreement upon which The Labour Relations Act confers a comparable status, adopt a working week in which daily working hours are in excess of eight hours, without paying wages at overtime rates for hours worked in any day not exceeding the number of hours approved for that working day.

Variation of hours for shifts.

33(2)

To facilitate the arrangement or rotation of shifts, the board may, by order, authorize an employer to require employees who work in shifts to work for more than the maximum daily or weekly hours mentioned in section 32 without paying the employees overtime rates for the excess hours; but, in that case, the average number of hours worked by an employee in any day or week shall not, over such number of weeks as may be prescribed by the board in the order, exceed the maximum daily or weekly hours mentioned in section 32, unless the employee is paid wages for the excess hours at overtime rates; and the board may make the order subject to such conditions as it deems reasonable.

Variation of hours for class of industry.

33(3)

Where, in the opinion of the board, it is not feasible or is not reasonable to apply section 32 to an industry, or branch thereof, or to any group, kind, or class, of industries, the board may, by order, authorize such a daily, weekly, or monthly maximum number of working hours therein, or for any class or group of employees therein, as it deems fair or reasonable and may make those working hours applicable for such periods of the year as it deems proper; but, in making any such order, the board shall give consideration to any existing custom or agreement.

Review of orders.

33(4)

Where the board makes an order under this section, it shall, at least once in each year after making the order, review the circumstances of the employment affected by the order, and may, by further order, revoke or vary the order.

Overtime in emergencies.

34(1)

An employee may be required to work overtime

(a) in the case of work urgently required to be done to the machinery or plant of the employer whose employees are affected but only to the extent necessary to avoid serious interference with the ordinary work of the plant; or

(b) in the case of an occurrence beyond human control which affects the life, health or safety of individuals or which interrupts the ordinary provision of an essential service by the government or an agency of the government or a municipality, or a public utility or any employer who provides municipal or health services.

Suspension of overtime rates in declared emergencies.

34(2)

The Lieutenant Governor in Council may, by order in council, declare that a state of public emergency exists for the purposes of this Act; in the whole province or in any part thereof specified in the order; and

(a) where such a declaration is made; or

(b) where a Royal Proclamation is issued under The Emergency Measures Act declaring the existence of a state of civil disaster generally or in any part of the province, or the existence of a state of war emergency;

then, during the existence of the state of public emergency or the state of civil disaster, or the state of war emergency, and in that part of the province in which it applies if it does not apply in the whole province, employees may be required to work overtime to meet or relieve the public emergency, civil disaster or war emergency.

Report on emergency work.

34(3)

Where emergency work is performed as mentioned in subsection (1), the employer shall keep a special record of it and shall, within 30 days of the performance thereof, file with the board a written report stating the reason and extent of the work and the names of the employees engaged on it and the board shall take such action in respect thereof as it considers advisable.

Employer rights re overtime.

34(4)

Subject to the provisions of this Act, management rights shall be deemed not to include any implied right to require an employee to work overtime.

Meaning of "plant".

34(5)

When applying this section to an employer or an employee of an employer, "plant" without limiting or diminishing the general meaning of the word, includes any property or facility, wherever situated, owned or used by the employer in carrying on the business of the employer and where the employer provides facilities or service to the public includes those facilities, wherever situated, and any property, wherever situated, that is required to be maintained by the employer to provide those facilities and services.

GENERAL HOLIDAYS

Pay for general holidays not worked.

35(1)

Except as herein otherwise provided, every employee who does not work on a general holiday that falls on a regular working day, shall be paid at least the equivalent of the wages he would have earned on that day had that day not been a general holiday, notwithstanding that the employee is paid on a monthly, weekly, daily, hourly or other basis.

Average daily earnings.

35(2)

Where the wages of an employee vary from day to day, his pay for a general holiday on which he has not worked shall be at least equivalent to his average daily earnings exclusive of overtime for the days on which he worked during the 30 calendar days immediately preceding the general holiday.

Employee entitled whether or not on payroll.

35(3)

An employee who is otherwise entitled under this section to pay for a general holiday on which he has not worked shall receive that pay whether or not he is on the payroll of his employer at the time of the general holiday, unless the employee has prior to the day of the general holiday voluntarily terminated his employment.

Rate of pay for working on the general holiday.

35(4)

An employee who is required to and does work on a general holiday shall be paid at 1 1/2 times his regular rate of pay for all hours worked on the general holiday and in addition he shall be paid his regular pay for the general holiday.

General holiday occurring on non-working day.

35(5)

Except as is herein otherwise provided and subject to subsection (6), where a general holiday falls on a day that is a non-working day for an employee, the employee is entitled to and shall be granted a holiday with pay not later than the time of his next annual vacation or at a time convenient to the employee and his employer.

General holiday occurring on Saturday or Sunday.

35(6)

Except as is herein otherwise provided, where New Year's Day, Canada Day or Christmas Day falls on a Sunday or Saturday that is a nonworking day, the employee is entitled to and shall be granted a holiday with pay on the working day immediately preceding or following the general holiday.

Cases of no collective agreement.

35(7)

Where there is no collective agreement in effect between an employer and his employees, another day may be substituted for a general holiday by agreement between the employer and a majority of his employees, in which case that day shall be considered a general holiday for the purposes of this Act.

Cases where collective agreement affects some employees only.

35(8)

Where there is a collective agreement in effect between an employer and his employees and some of the employees of that employer are not covered by the collective agreement, another day may be substituted for a general holiday by agreement between the employer and a majority of those employees not covered by the collective agreement, in which case that day shall be considered a general holiday in respect of those employees not covered by the collective agreement for the purposes of this Act.

Variation where collective agreement in force.

35(9)

Where there is a collective agreement in effect between an employer and his employees, the employer may, in respect of those employees covered by the agreement, by agreement with the bargaining agent, substitute another day for the general holiday, in which case that day shall be considered a general holiday in respect of those employees covered by the collective agreement for the purposes of this Act.

Employee not to work on day of rest.

35(10)

Where an employee does not work on a general holiday, his employer shall not require him to work on another day in that week that would otherwise be the employee's day of rest, unless the employee is paid at the rate of 1 1/2 times his regular rate for the time worked on that day.

Cases where employee not entitled to pay for a general holiday.

35(11)

Notwithstanding anything contained in this section but subject to subsection (12), an employee is not entitled to pay for a general holiday in which he does not work where

(a) he has not earned wages for part or all of each day of at least 15 days during the 30 calendar days immediately preceding the general holiday; or

(b) he did not report for work after having been called to work on the day of the general holiday; except where the employee is dismissed or laid-off by his employer or is ill; or

(c) he has absented himself from work without the employer's consent either on the regular working day immediately preceding or following the general holiday;

but if an employee who is not entitled to pay for a general holiday that falls on a regular working day, does work on the general holiday, he shall be paid wages equivalent to at least 1 1/2 times his regular rate for the time worked on that day.

Minimum wage earners.

35(12)

The provisions of this section apply to a minimum wage earner except in any case where there is a regulation containing provisions relating to the entitlement of the minimum wage earner to pay for general holidays that are more favourable to the minimum wage earner, in which case the provisions of the regulation prevail.

Absence on account of illness.

35(13)

Notwithstanding clause (ll)(c), an employee shall not be deprived of his pay for a general holiday if by reason of established illness the employee is absent from work on either or both of the days immediately preceding or following the general holiday.

Other arrangements as to holiday work.

35(14)

Where the provisions established by any other Act or by any agreement, contract of service, or any custom for the payment of overtime rates to a person employed in an industry for work done on a general holiday are more favourable than this Act to the person employed, the provisions so established prevail over this Act.

Less favourable arrangements superseded.

35(15)

Where the provisions established by any other Act or by any agreement, contract of service, or any custom for the payment of overtime rates to a person employed in an industry for work done on a general holiday are less favourable than this Act to the person employed, the provisions of this Act prevail over the provisions so established.

Compensatory time off.

35(16)

Notwithstanding subsection (4), a person employed in a continuously operating plant, a seasonal industry except the construction industry, a place of amusement, a gasoline service station, a hospital, a hotel, or a restaurant, or in domestic service, is not entitled to receive pay for working or being on duty on a general holiday in accordance with the provisions of that subsection, if, in lieu thereof, he receives, in addition to any annual vacation with pay to which he may be entitled under any Act of the Legislature, equivalent compensatory time off with pay

(a) within 30 days after the general holiday; or

(b) where he and his employer agree at his request on a date more than 30 days after the general holiday, on that date;

but in the case of clause (a), the employer shall give to the employee at least two days prior notice of the day to be taken off by the employee in lieu of the general holiday.

Construction industry employees.

35(17)

Notwithstanding any other provision of this section an employee who is employed in the construction industry,

(a) whether or not he works on a general holiday is entitled to receive in lieu of paid holidays, 4% of his total gross wages, exclusive of overtime earned in the calendar year and he shall be paid this amount not later than December 31 of the calendar year or upon termination of his employment whichever day is the earlier; and

(b) who is required to work and does work on a general holiday shall be paid in addition to the amount payable under clause (a), an amount equivalent to at least 1 1/2 times his regular rate of wages for the time worked on the general holiday.

Maternity leave.

36(1)

Every employee

(a) who has completed 12 consecutive months of employment for or with an employer;

(b) who submits to her employer an application in writing for leave under this subsection at least four weeks before the day specified by her in the application as the day on which she intends to commence such leave; and

(c) who provides her employer with a certificate of a duly qualified medical practitioner certifying that she is pregnant and specifying the estimated date of her delivery;

is entitled to and shall be granted maternity leave consisting of

(d) a period, not exceeding 17 weeks if delivery occurs on or before the date of delivery specified in the certificate mentioned in clause (c); or

(e) a period of 17 weeks plus an additional period equal to the period between the date of delivery specified in the certificate mentioned in clause (c) and the actual date of delivery, if delivery occurs after the date mentioned in that certificate.

Commencement and terminating dates of leave.

36(2)

Maternity leave granted to an employee under subsection (1) shall commence not earlier than 11 weeks preceding the date specified in the certificate mentioned in clause (l)(c) and shall terminate not later than 17 weeks following the actual date of delivery.

Special leave related to pregnancy.

36(3)

An employee who does not submit an application for maternity leave in accordance with clause (l)(b), but who except for the non-compliance with that clause would have been eligible for maternity leave provided in subsection (1), is entitled to and shall be granted leave consisting of

(a) such period or periods within the 11 weeks immediately preceding the estimated date of her delivery as certified by a duly qualified certified medical practitioner, if she provides her employer with a certificate from a duly qualified medical practitioner stating that during the period or periods mentioned in the certificate the employee

(i) was incapable of performing the normal duties of her employment, or

(ii) will be incapable of performing the normal duties of her employment, by reason of a medical condition that is or was directly attributable to her pregnancy; and

(b) such further period that when added to the leave granted under clause (a) will not exceed the amount of maternity leave to which a female employee is entitled under subsection (1).

Special entitlement to leave.

36(4)

Notwithstanding that an employee does not apply for maternity leave under subsection (1) or (3), she is nevertheless entitled and shall be granted leave for a period not exceeding the period of maternity leave to which she is entitled under subsection (1).

Limitation.

36(5)

Notwithstanding anything contained in subsections (3) and (4), leave granted to an employee under any of those subsections shall terminate no later than 17 weeks following the actual date of her delivery.

Reinstatement of employee.

36(6)

An employee who wishes to resume her employment on the expiration of leave granted to her in accordance with this section shall be reinstated by her employer in the position occupied by her at the time such leave commenced or in a comparable position with not less than the same wages and benefits.

Employment deemed continuous.

36(7)

For the purpose of calculating pension and other benefits of an employee to whom leave is granted in accordance with this section, employment after the termination of that leave shall be deemed to be continuous with employment before the commencement of that leave.

Prohibition.

36(8)

No employer shall dismiss or lay-off an employee who has completed 12 consecutive months of employment by the employer solely because she is pregnant or has applied for leave in accordance with this section.

Change in ownership of business.

36(9)

For the purposes of this section, where a business is sold, transferred or merged with another business, the employment of the employees of that business shall be deemed to be continuous.

Regulations.

36(10)

The Lieutenant Governor in Council may make regulations for the purpose of carrying out the provisions of this section including regulations respecting absences from employment that shall be deemed not to have interrupted continuity of employment.

Application of section.

36(11)

Notwithstanding anything contained in this Act, the provisions of this section apply to every person employed in any industry or business.

Paternity leave.

37(1)

Every employee who

(a) has become the natural father of a child;

(b) has completed 12 consecutive months of employment for or with an employer: and

(c) has submitted to his employer an application in writing for leave at least four weeks before the day specified in the application as the day on which he intends to commence such leave;

is entitled to, and shall be granted, paternity leave in accordance with subsection (2).

Length and commencement of leave.

37(2)

Paternity leave consists of a continuous leave of up to six weeks to be taken within the period of six weeks beginning, as the employee elects,

(a) on the day the child is born; or

(b) after the birth of the child but during, or on the expiry of, any leave of absence from employment taken under this Act, an act of Parliament or any other Legislature, or any collective agreement, by a female employee in respect of the child; or

(c) on the day the child comes into his actual care and custody; or

(d) at any time during the 90 days immediately following the birth of the child.

Special entitlement to leave.

37(3)

An employee who fails to comply with clause (l)(c) is nevertheless entitled to, and upon application to his employer shall be granted, the paternity leave to which he is entitled under subsection (2) or such portion thereof as has not yet expired at the time the application is made.

Application of other provisions.

37(4)

Subsections 36(4) to (9) apply with such modifications as the circumstances require to paternity leave under this section.

Adoption leave.

38(1)

Every employee who

(a) has adopted a child under the law of any province;

(b) has completed 12 consecutive months of employment for or with an employer; and

(c) has submitted to the employer an application in writing for leave at least 4 weeks before the day specified in the application as the day on which the employee intends to commence such leave;

is entitled to, and shall be granted, adoption leave in accordance with subsection (2).

Length and commencement of leave.

38(2)

Adoption leave consists of a continuous leave of up to 17 weeks to be taken within the period of 17 weeks beginning, as the employee elects,

(a) on the day the child comes into the employee's actual care and custody; or

(b) at any time during, or on the expiry of, any leave of absence from employment taken under this Act, an act of Parliament or any other Legislature, or any collective agreement, by any other person in respect of the child; or

(c) at any time during the 90 days immediately following the day on which the child comes into the employee's actual care and custody.

Special entitlement to leave.

38(3)

An employee who fails to comply with clause (l)(c) is nevertheless entitled to, and upon application to the employer shall be granted, the adoption leave to which he or she is entitled under subsection (2) or such portion thereof as has not yet expired at the time the application is made.

Application of other provisions.

38(4)

Subsections 36(4) to (9) apply with such modifications as the circumstances require to adoption leave under this section.

NOTICE OF TERMINATION OF EMPLOYMENT

Termination of employment without notice prohibited.

39(1)

Subject as in this section otherwise provided,

(a) no person having control or direction of, or responsible directly or indirectly for, the employment, or termination of the employment, of any person in any industry carried on or operating in the province shall terminate the employment of a person so employed; and

(b) no person employed in any industry to which clause (a) applies shall terminate his employment;

unless notice is given, as in this section provided, to the person so employed, in a case to which clause (a) applies, or to the person who provides the employment, in a case to which clause (b) applies.

Where subsec. (1) not applicable.

39(2)

Subsection (1) does not apply where

(a) there is a general custom or practice in any industry respecting the termination of employment that is contrary in whole or in part to subsection (1); or

(b) different conditions respecting the termination of employment are included in an agreement between, or binding upon, the persons employed in an establishment, or some of them, and the person by whom they are employed; or

(c) the employer has, pursuant to subsection (3), established a practice under which the employer and his employees may terminate employment with a period of notice shorter than that required under subsection (6); or

(d) the person employed terminated his employment, or his employment is terminated, during the first two weeks of his employment with that employer, unless the employer and the employee agree in writing that subsection (1) applies during that period.

Establishment of practice as to termination of employment.

39(3)

For the purposes of clause (2)(c) an employer may establish a practice, or confirm the existence of a practice,

(a) by notifying each person then in his employment, in writing, of the terms of the practice that the employer proposes to establish or wishes to confirm; and

(b) by posting and keeping posted in a prominent place where employees can readily read it at the time of receiving payment of wages, a notice setting out the terms of the practice respecting notice of termination of employment;

and on the expiry of one month from the date on which the employer complies with clauses (a) and (b), the practice shall be conclusively presumed to be established.

Notice of practice to new employees.

39(4)

An employer who has established a practice under subsection (3) shall notify each person thereafter taken into his employment of the terms of the practice, by a written notice given to that person at the time employment commences.

Notice required where term of employment not fixed.

39(5)

Where notice is required to be given under subsection (1) and the period of employment is not fixed and the wages are, or the salary is, paid once a month or more often, the employer or person employed desiring to terminate the employment shall give to the person employed or the employer, as the case may be, notice of the date on which the employment is to terminate.

Length of notice required.

39(6)

The period between the date on which notice of termination of employment is given to any person and the date of termination shall not, subject to subsection (7), be shorter than the period in respect of which one regular instalment of wages or salary is paid to the person whose employment is being terminated.

Exception where wages paid less often than monthly.

39(7)

Where the period of employment is not fixed and the wages are, or the salary is, paid less frequently than once a month, reasonable notice of the termination of the employment shall be given.

Notice where employment term is fixed.

39(8)

Where the period of employment is fixed, but employment is by mutual arrangement continued after the end of the period, subsection (1) applies; but no notice is required to be given if the employment terminates at the end of the period originally fixed therefor.

Notice where employment is for specified work.

39(9)

Where employment is for the performance of specified work, subsection (1) does not apply unless the employment is, by mutual consent, continued after the completion of the specified work; in which case the foregoing provisions of the section apply.

Effect of violent or improper conduct.

39(10)

In any action, proceedings, or prosecution, brought against any person,

(a) for the recovery of wages or salary alleged to be due, or for damage or injury alleged to have been suffered; or

(b) by way of information or complaint;

by reason of, or in respect of, or arising out of, an alleged violation of this section, if the judge or justice by whom the matter is tried or heard is satisfied that the person who brings or institutes the action or proceedings or lays the information or makes the complaint

(c) has been guilty of conduct, deemed by the judge or justice to be violent or improper, towards the person against whom the action, proceedings or prosecution is brought; or

(d) in the case of a person employed, has been guilty of conduct deemed by the judge or justice to be insubordinate or dishonest;

the judge or justice may dismiss the action or proceedings or the charge, notwithstanding that it is shown that the employment of an employed person was terminated without notice being given as provided in this section.

Complaint to minister.

39(11)

Where either party to a written or oral contract of employment claims that the employment has been terminated in violation of this section or section 40, he may within 90 days of the day on which the employment was terminated make a written charge addressed to the minister.

Action by minister.

39(12)

The minister upon receipt of a charge may himself inquire into it or may refer it to the board for investigation.

Action on admission of failure to give notice.

39(13)

Where the person against whom the charge is made admits that he failed to give the required notice of termination of employment, the minister or the board, as the case may be, may

(a) if the party making the charge is a person employed, order the employer to pay to the person employed, as wages, the amount that the person employed would have earned in regular hours in the period in respect of which notice should have been, but was not, given, or such portion thereof as the minister or the board considers fair; and

(b) if the party making the charge is an employer, authorize the employer to deduct from any moneys due or accruing due from the employer to the person employed, for wages or vacation wages or otherwise, the amount of money that the person employed would have earned in regular hours in the period in respect of which notice should have been, but was not, given, or such portion thereof as the minister or the board considers fair;

and, in a case to which clause (b) applies, if there is not in the hands of the employer sufficient money due or accruing due to the person employed from the employer, the minister or the board, as the case may be, may issue a certificate setting forth the facts and stating the amount found due from the person employed to the employer as aforesaid; and if the employer brings action to recover that amount from the person employed, he may produce the certificate in court in evidence as prima facie proof of the facts therein certified.

Hearing.

39(14)

Where the person against whom the charge is made does not admit that he failed to give notice, of termination of employment as required, the minister or the board, as the case may be, may conduct a hearing at which the parties may give evidence; and

(a) if the person making the charge is a person employed, the minister or the board may dismiss the charge or order the employer to pay the person employed, as wages, the amount that the person employed would have earned in regular hours in the period in respect of which notice should have been, but was not, given or such portion thereof as the minister or the board, as the case may be, considers fair;

(b) if the person making the charge is an employer, he shall at the time of making his charge lodge with the minister an amount equal to all moneys due or accruing due to the employee for wages, vacation wages, or otherwise, to abide the outcome of the matter, and the minister or the board, as the case may be, may dismiss the charge or make a declaration stating the amount that the person employed would have earned in regular hours in the period in respect of which notice should have been, but was not, given or such portion thereof as the minister or the board, as the case may be, considers fair;

(c) if the person making the charge is an employer, but there are no moneys due or accruing due from the employer to the person employed for wages, vacation wages, or otherwise, the minister or the board upon completion of the hearing, may make a declaration stating the amount that the person employed would have earned in regular hours in the period in respect of which notice should have been, but was not, given or such portion thereof as the minister or the board, as the case may be, considers fair and, if so requested by the employer, shall issue a certificate stating the amount so found to be due;

(d) if the person making the charge has, in the opinion of the minister or the board, as the case may be, been guilty

(i) of violent or improper conduct towards the person against whom the charge is made, or

(ii) if an employee, of insubordinate or dishonest conduct;

the minister or the board may dismiss the charge notwithstanding that it is shown that the employment of the employed person was terminated without notice being given as provided in this section; and if the employer brings action against the person employed to recover the amount stated, in a certificate issued under clause (c), to have been found to be due, he may produce the certificate in court in evidence as prima facie proof of the facts therein stated.

Payment following order.

39(15)

Unless the order is appealed under subsection (18) or (19), any person against whom an order is made under subsection (13) or (14) shall forthwith pay the amount which he is ordered to pay in accordance with the order.

Conclusivity of declaration under cl. (14)(b).

39(16)

Where the minister or the board makes a declaration under clause (14)(b), if the person employed does not appeal against it under subsection (18) or (19), as the case may be, he shall be conclusively deemed to have accepted the declaration, and the minister, after offsetting any moneys lodged with him as provided in clause (14)(b) against the amount that the person employed would have earned as stated in the declaration, shall pay to the employer and the person employed the share if any, of the moneys to which, under the declaration, each of them appears to be entitled.

Vacation pay.

39(17)

Where a person employed lodges a claim under The Vacations with Pay Act, for vacation wages alleged to be due at the time employment is terminated, and the employer, in answering the claim, alleges before the board that the person employed has terminated his employment in violation of this section, and by reason thereof is indebted to him in a sum stated, if the person employed is found entitled to vacation wages, the board may hear evidence in support of the employer's allegation, and

(a) if the board is of the opinion that it is not proven, may reject the allegation and order the employer to pay the vacation wages to which the person employed is found entitled; or

(b) if the board is of the opinion that the employer's allegation is proven, it may allow the allegation and make a declaration stating the amount found to be due to the employer by the person employed, and, if so requested by the employer, shall issue a certificate stating the amount so found to be due;

and, if the employer brings action against the person employed to recover the amount stated, in a certificate issued under clause (b), to have been found to be due, he may produce the certificate in court in evidence as prima facie proof of the facts therein stated.

Referral to board.

39(18)

Where under subsection (13) or (14), the minister makes an order or declaration or authorizes an employer to deduct an amount of moneys due or accruing due to a person employed, or dismisses a charge, he shall also advise the persons affected thereby that if any person affected thereby disputes the determination of the matter by the minister, he may within seven days after the date of the order, declaration or authorization, or within such further period of time as the minister may allow, request the minister to refer the matter to the board for determination of the matter and the minister shall thereupon refer the matter to the board which may deal with the matter as though it had been referred to it by the minister under subsection (12).

Appeal to Court of Appeal.

39(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(l)(c) thereof applies, with the changes the circumstances require, to any appeal taken.

Payment into court.

39(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.

Notice for group termination of employment.

40(1)

Any employer who terminates, either simultaneously or within any period not exceeding four weeks, the employment of a group of 50 or more employees, shall give notice to the minister, in writing, of his intention to do so at least

(a) 10 weeks before the date of termination of the employment of the employee in the group whose employment is first terminated where the group of employees whose employment is to be terminated does not exceed 100;

(b) 14 weeks before the date mentioned in clause (a) where the group exceeds 100 but does not exceed 300; and

(c) 18 weeks before the date mentioned in clause (a) where the group exceeds 300.

Non-application of subsection.

40(2)

Subsection (1) does not apply where the employees involved

(a) are employed for a definite term or task where the term or task does not extend beyond a period of 12 continuous months;

(b) are laid-off as defined in the regulations;

(c) have been guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the employer;

(d) are employed under a contract of employment that is or has become impossible to perform or is frustrated by a fortuitous or unforeseeable circumstance;

(e) are laid-off after refusing an offer by their employer of reasonable alternate work;

(f) are laid-off after refusing alternate work made available to them through a seniority system;

(g) are on lay-off and do not return to work within a reasonable time after being requested to do so by their employer;

(h) are on strike or locked out;

(i) are employed in the construction industry;

(j) are employed under an arrangement whereby they may elect to work or not to work for a temporary period when requested to do so; or

(k) have reached the age of retirement according to the established practice of the employer, and have their employment terminated.

Copy of notice to union.

40(3)

A copy of any notice given to the minister under subsection (1) shall be given forthwith by the employer to any trade union certified to represent any employee in the group of employees whose employment is to be terminated or recognized by the employer as bargaining agent for any such employee; and where any employee in such group is not represented by a trade union, a copy of such notice shall be given to him or posted forthwith by the employer in a conspicuous place within the establishment in which that employee is employed.

Contents of notice.

40(4)

A notice referred to in subsection (1) shall set forth

(a) the date or dates on which the employer intends to terminate the employment of any one or more employees;

(b) the reasons for which the employment of the employees is being terminated;

(c) the names of not less than two persons for the purpose of appointment to a joint planning committee under subsection (9) to represent the views of the employer;

(d) the estimated number of employees in each occupational classification whose employment will be terminated; and

(e) such other information as is prescribed by the regulations.

Payment in lieu of notice.

40(5)

An employer may terminate the employment of an employee forthwith if the employer gives to the employee notice in writing to that effect and

(a) pays to the employee an amount equal to the wages that person would have received had he worked his regular working hours at his regular rate of pay for the period of notice mentioned in subsection (1); and

(b) pays to the employee any unpaid vacation pay to which the employee is entitled under The Vacations With Pay Act.

Lay-offs.

40(6)

Except where otherwise provided by the regulations, an employer shall, for the purpose of this section, be deemed to have terminated the employment of an employee where he lays-off that employee.

Co-operation with minister.

40(7)

An employer who has given a notice under subsection (1) to the minister and any trade union to which a copy of that notice is given, shall co-operate with the minister in any action or program aimed at facilitating the re-establishment in employment of the employees involved.

Meaning of "affected employees".

40(8)

In this section "affected employees" means those employees whose employment is terminated or is to be terminated pursuant to a notice under this section.

Minister may appoint committee.

40(9)

Without limiting the generality of subsection (7), where notice is given to the minister in accordance with subsection (1), the minister may establish and appoint a joint planning committee consisting of

(a) not less than two persons representative of the views of the employer;

(b) not less than two persons representative of the views of the affected employees; and

(c) such other persons considered by the minister to be suitable for appointment to the committee.

Employer representatives.

40(10)

The employer representatives to any joint planning committee shall be appointed from among the names set out in the notice referred to in subsection (4).

Employee representatives where union.

40(11)

Where the affected employees are represented by a trade union, the minister shall appoint the employee representatives to a joint planning committee from among names submitted to the minister by the trade union, and the number of persons so appointed shall be equal in number to the number of persons appointed under this section to represent the views of the employer.

Employee representatives where no union.

40(12)

Where the affected employees are not represented by a trade union, the minister shall appoint the employee representatives to a joint planning committee from among names submitted to the minister by the affected employees, and the number of persons so appointed shall be equal in number to the number of persons appointed under this section to represent the views of the employer.

Employee representatives to be elected.

40(13)

Each person whose name is submitted to the minister under subsection (12) shall be elected by the affected employees and the employer shall assist the affected employees so as to facilitate the election of persons to represent the views of the affected employees.

Co-chairpersons.

40(14)

The members of a joint planning committee, other than members appointed in accordance with clause (9)(c), shall elect from among themselves two co-chairpersons, one being a representative of the affected employees selected by their representatives and the other being a representative of the employer selected by the employer's representatives.

Terms of reference.

40(15)

The minister may, in the instrument appointing persons as members of a joint planning committee, set forth

(a) a statement of the matters referred; and

(b) the date prior to which the committee shall make a report to the minister.

Procedure.

40(16)

Except as otherwise provided in this section, a joint planning committee may determine its own procedure.

First sitting.

40(17)

The members of a joint planning committee shall convene their first meeting within seven days after the date the minister has appointed the committee.

Wages.

40(18)

A member of a joint planning committee who is an employee of the employer is entitled to such time from work as is necessary to attend sittings of the committee or to carry out any other functions as a member of the committee and any time spent by such a member in carrying out such functions or attending such meetings shall, for the purpose of calculating wages owing to the member, be deemed to have been time spent at the member's work for the employer.

Object of joint planning committee.

40(19)

The object of a joint planning committee shall be to develop on a co-operative basis an adjustment program to eliminate the necessity for the termination of employment or to minimize the impact of such termination on the affected employees and to assist those employees in obtaining other employment.

Scope of matters considered.

40(20)

In attaining its object under subsection (19), a joint planning committee may deal with all matters relevant to its object and mandate and shall not be limited to dealing only with such matters as are normally the subject matter of a collective agreement in relation to termination of employment.

Co-operation with committee.

40(21)

The employer and any trade union or affected employees who submitted names of persons to the minister for appointment to a joint planning committee shall co-operate with and assist the committee in developing and implementing an adjustment program and provide the committee with such information as the committee may reasonably require.

Notice by employee.

40(22)

Any employee who wishes to terminate his employment prior to the expiration of a notice mentioned in subsection (1), shall in writing give notice thereof to his employer in accordance with section 39.

Exemption by minister.

40(23)

Where, upon the submission of any person, it is shown to the satisfaction of the minister that the application of this section in respect of any employees of any employer

(a) would be or is unduly prejudicial to the interests of those employees or to any class of those employees;

(b) would be or is unduly prejudicial to the interests of the employer of those employees; or

(c) would be or is seriously detrimental to the operation of the employer's business;

the minister may, by order, and subject to any terms or conditions specified therein, waive the application of this section in respect of the employees of that employer or in respect of any class of those employees specified in the order.

Variation of working conditions.

40(24)

Where pursuant to subsection (1), an employer has given a notice to terminate employment, he shall not change or vary the working conditions or wage rates of the employees affected except

(a) with the written consent of that person or his agent; or

(b) where there is in force a collective agreement which authorizes such a change or variation.

Regulations.

40(25)

The Lieutenant Governor in Council may make regulations for carrying out the purposes and provisions of this section and, without limiting the generality of the foregoing, may make regulations

(a) exempting employers from the application of this section in respect of the termination of employees employed on a seasonal or irregular basis or for a definite term or task;

(b) prescribing additional information to be set forth in any notice referred to in subsection (1);

(c) prescribing circumstances in which a lay-off of an employee shall not be deemed to be a termination of his employment by his employer.

WEEKLY DAY OF REST

Weekly day of rest.

41(1)

Subject as hereinafter provided, every employer shall ensure to every employee employed in his plant, in each seven day period, a rest period of at least 24 consecutive hours during which the employee shall not be required or authorized to perform any work or discharge any duties in, at, or about, the employer's plant.

Exemption from application.

41(2)

Where, in the opinion of the minister, the application of subsection (1) to a plant and to the employees therein

(a) is an undue hardship to the employer carrying on the industrial undertaking; or

(b) because the plant is situated in a remote area, is of little or no benefit to the employee; or

(c) because the plant operates during only part of the year or certain operations in the plant can be undertaken during only part of the year, unduly restricts the effective operation of the plant; or

(d) because of special circumstances under which a plant is operated, is causing severe loss during a specific period;

the minister, in his absolute discretion, on the written application of the employer, may issue a permit exempting the plant from the application of subsection (1) for such period or indefinitely and subject to such terms and conditions as may be prescribed in the permit, and during such period or indefinitely as may be prescribed in the permit, subsection (1) does not apply to that plant and the employees therein.

Exemption by agreement.

41(3)

Where the employer and the bargaining agent certified under The Labour Relations Act for all the employees in the plant jointly apply in writing to have the plant exempted from the application of subsection (1), the minister, in his absolute discretion, may issue a permit exempting the plant from the application of subsection (1), for such period or indefinitely and subject to such terms and conditions as may be prescribed in the permit, and during such period or indefinitely as may be prescribed in the permit, subsection (1) does not apply to that plant and the employees therein.

Accumulated holidays.

41(4)

Where the minister issues a permit under subsection (2) or (3), every employee who works in the plant shall, in respect of each rest period to which he would be entitled under subsection (1) except for the permit, and on which he works, accumulate and be entitled to one additional day of holiday without pay.

Cancellation of permit.

41(5)

The minister, in his absolute discretion, may cancel any permit issued under subsection (2) or (3).

Persons to whom subsec. (1) does not apply.

41(6)

Subsection (1) does not apply to

(a) watchmen, janitors, and firemen, who live in the building in which they are employed unless the nature of their work is such that it cannot reasonably be performed within an average of 10 hours of actual work for each day;

(b) employees occupying supervisory, managerial, or confidential positions;

(c) employees engaged in repairing or replacing equipment or machinery by reason of breakage or engaged in work of a similar emergency nature in the plant wherein they are employed;

(d) employees employed for a period not exceeding three hours during their period of rest for the sole purpose of feeding and attending horses where such work is part of their usual duty;

(e) employees engaged in emergency work as mentioned in section 34;

(f) a plant that the minister has exempted by the issue of a permit as provided in subsection (2) or (3), and the employees employed therein.

DISCHARGE BECAUSE OF GARNISHMENT

Prohibition against discharge because of garnishment.

42(1)

No employer shall discharge an employee or terminate the employment of an employee solely because the employer has been served with a garnishing order against the wages, salary or other remuneration of the employee.

Complaint.

42(2)

Where an employee claims that he was discharged or his employment was terminated in violation of subsection (1), he may, within 30 days of the day on which he was discharged, or his employment was terminated, make a written complaint to the board setting out the circumstances.

Labour Relations Act applies.

42(3)

Where the board receives a complaint under subsection (2), sections 30 and 31 of The Labour Relations Act apply with necessary modifications.

Employment of children.

43(1)

No child shall be employed in any building, structure, or premises, of any kind, or land in or on which any person is employed for remuneration by an employer whose operations include, as a substantive part, the processing, producing, manufacturing, cleaning, altering, repairing, or servicing of any material, substance, article, machinery, or thing by manual labour or by the use of machinery, or by both such labour and such use of machinery.

Prohibition of employment of adolescents.

43(2)

The Lieutenant Governor in Council may make regulations prohibiting or regulating the employment of adolescents, in any place of employment the work in which is deemed by the Lieutenant Governor in Council to be dangerous, unwholesome or unhealthy.

PART IV

EQUAL PAY

Definitions.

44

In this Part,

"board" has the same meaning as under The Payment of Wages Act; ("commission")

"employee" means any person who is in receipt of, or is entitled to, compensation for labour or services performed for another, but does not include an independent contractor; ("employé")

"wages" has the same meaning as under The Payment of Wages Act. ("salaire")

Discrimination between sexes prohibited.

45(1)

Subject as herein provided, no employer and no person acting on behalf of an employer, shall discriminate between the male and female employees of the employer by paying to the employees of one sex wages on a scale different from that on which wages are paid to employees of the other sex in the same establishment, if the work required of, and done by, employees of each sex is the same or substantially the same.

When work deemed same.

45(2)

Subject to subsection (3), for the purposes of subsection (1) work for which a male employee is employed and work for which a female employee is employed shall be deemed to be the same or substantially the same, if the job, duties, responsibilities, or services, that the employees are called upon to perform are the same or substantially the same in kind or quality and are substantially equal in amount.

Exceptions.

45(3)

A difference between the scale of wages of a male employee and that of a female employee does not constitute a failure to comply with this section if the difference is based on any factor other than sex that, in the opinion of the board, would normally justify the difference.

Effect of acceptance of illegal wages.

46

The acceptance by an employee of wages on a scale of wages established or in use contrary to this Act is not

(a) a defence to an action by an employee to recover wages on a different scale; or

(b) a bar to the laying of a complaint under this Act; or

(c) a defence to a prosecution under this Act.

Discharge or discrimination because of complaint.

47

No employer shall discharge or otherwise discriminate against any person because that person has made a complaint or given evidence or assisted in any way in respect of the initiation or prosecution of a complaint or other proceeding under this Act.

Collective agreements contrary to Act forbidden.

48

No employer, and no trade union or society acting as bargaining agent for employees, shall negotiate or enter into a collective agreement providing for scales of wages forbidden by this Act.