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as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. P31
The Payment of Wages Act
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"board" means
(a) the wages board continued under section 2, or
(b) The Manitoba Labour Board designated under section 2; ("Commission")
"director" means the person employed by the government under the minister and designated by the minister as the director of the Employment Standards Division of The Department of Labour, and includes the deputy of the director; ("directeur")
"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; ("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")
"encumbrance" means a charge or lien on land other than a mortgage, and includes an hypothecation of the charge or lien; ("charge")
"industrial undertaking" means any establishment, work, or undertaking in or about any industry, business, trade, or occupation; ("entreprise industrielle")
"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; ("ministre")
"pay period" means a period of employment not exceeding 16 consecutive days; ("période de paye")
"purchase money security interest" means a security interest that is
(a) taken or reserved by the seller of the collateral to secure payment of all or part of its price, or
(b) taken by a person who gives value that enables the debtor to acquire rights in or the use of the collateral, if that value is applied to acquire those rights; ("sûreté pour le prix d'achat")
"wage" includes salary, commission, or any compensation for labour or services measured by time, piece, or otherwise, and any pay which is due and payable to an employee including money payable under The Vacations With Pay Act or moneys payable in cases of termination of employment under The Employment Standards Act. ("salaire")
The "Wages Board" consisting of not less than three members appointed by the Lieutenant Governor in Council, one of whom shall be named chairman of the board, is continued.
Two members of the board shall constitute a quorum.
Single member may act for the board.
Notwithstanding subsection (2), any one member of the board has the power and may carry out all the functions and duties of the board.
Notwithstanding subsection (1), the Lieutenant Governor in Council may, instead of establishing a board under that subsection, designate The Manitoba Labour Board to be the board for the purposes of this Act.
Unless under subsection (4) The Manitoba Labour Board is designated as the board for the purposes of this Act, any reference in The Employment Standards Act or The Vacations With Pay Act to The Manitoba Labour Board shall be deemed to be a reference to the board established under subsection (1) or designated under subsection (4).
Subject to subsections (2) and (3), every employer carrying on any work in or about any industrial undertaking within the province shall
(a) at least as often as semi-monthly pay to each employee engaged in or about the work so carried on, whether by way of manual labour or otherwise, all wages earned by the employee; and
(b) pay those wages within five working days after the expiration of each pay period or within five days of the termination of employment, as the case may be.
An employee who is absent at the time fixed for payment of wages, or who, for any other reason, is not paid at that time, is entitled to the payment at any time thereafter on demand.
This section does not prohibit an employer
(a) from paying wages to any of his employees at intervals less frequent than those set out in clause (1)(a); or
(b) from paying wages to any of his employees within a period that is longer than that mentioned in clause (1)(b);
if the payments are made in accordance with the terms of any existing practice or under the terms of a subsisting collective agreement, or in accordance with the provisions of an order of the minister with respect thereto granted on application.
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.
Every employer shall pay all wages
(a) in lawful currency of Canada; or
(b) by cheque or bill of exchange drawn upon a chartered bank, credit union, trust company or other company insured under the Canada Deposit Insurance Corporation Act (Canada); or
(c) by deposit in an account of the employee in a chartered bank, credit union, trust company or other company insured under the Canada Deposit Insurance Corporation Act (Canada).
Liability of directors and officers of corporation.
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 six 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, with such modifications as the circumstances require, to the recovery of unpaid wages from a director or officer of the corporation.
Where associated or related activities, businesses, trades, or undertakings are carried on by or through more than one person, firm, syndicate or association, or any combination thereof, the board or director may determine that all of any one or more of such persons, firms, syndicates, or associations are a single employer for the purposes of this Act and, thereupon, those persons, firms, syndicates or associations shall be jointly and severally liable to pay unpaid wages and may be proceeded against under this Act.
Notwithstanding any other Act, but subject to subsections (6) and (7) the amount of wages due and payable by an employer to an employee not exceeding $2,000., constitutes a lien and charge on the property and assets of the employer in favour of the employee and is payable in priority to any other claim or right, including those of the Crown in right of Manitoba, and without limiting the generality of the foregoing that priority extends over every encumbrance, assignment, including an assignment of book debts, whether absolute or otherwise, debenture and other security, whether registered or not, made, given, accepted or issued before or after the coming into force of this Act.
Priority of order filed in Queen's Bench.
Where pursuant to this Act the director files an order for payment of wages in the Court of Queen's Bench and that order has been deemed to be a judgment of that court, the judgment constitutes a lien on the property and assets of the employer named in the order, in favour of the director and has the same priority as mentioned in subsection (1).
Priority extends to prior wages.
The priorities set out in subsections (1) and (2) apply with respect to any wages earned prior to this Act coming into force and to any complaint or proceedings that was made or commenced by the director or before the board prior to the coming into force of this Act.
Filing of certificate of judgment in L.T.O.
Upon filing an order in accordance with subsection 8(13), the director may obtain a certificate of judgment from the office of the Court of Queen's Bench and may file the certificate in any land titles office.
Filing of caveat or financing statement.
Prior to filing a certificate of judgment under subsection (4), the director may, upon receiving a complaint from an employee alleging that an employee did not receive wages due and payable from his employer
(a) file a caveat on behalf of the employee in the appropriate land titles office alleging that the employee claims an interest in the land affected by the caveat by virtue of the provisions of this Act; or
(b) file a financing statement in The Personal Property Registry completed in accordance with the regulations made under The Personal Property Security Act; or
(c) do both the things mentioned in clauses (a) and (b);
and upon the filing of the caveat or the financing statement, the interest of the employee has subject to subsection (8) the same priority as mentioned in subsections (1) and (2).
Priority of real property mortgage.
Notwithstanding the provisions of subsection (1) or of any other Act of the Legislature whether of special or general application, any mortgage registered in a land titles office prior to
(a) the filing of a certificate of judgment pursuant to subsection (4); or
(b) the filing of a caveat pursuant to subsection (5);
has priority to the lien for wages except for advances made on account of the mortgage after the certificate of judgment or caveat was filed in the land titles office.
Priority of purchase money security interest.
Notwithstanding the provisions of subsection (1) or of any other Act of the Legislature, a perfected purchase money security interest has priority to any lien for wages if the purchase money security interest was perfected
(a) prior to filing of a financial statement under subsection (5) by the director; or
(b) at the time the debtor obtained possession of the collateral or within 10 days thereafter.
Effect of caveat or judgment under Judgments Act.
The filing of a certificate of judgment pursuant to subsection (4) or the filing of a caveat pursuant to subsection (5) has the same priority as a judgment referred to in section 10 of The Judgments Act with respect to a bona fide agreement for sale of land or any interest therein or a bona fide option to purchase land subsisting at the time the certificate of judgment or caveat was filed.
Lienholders to share pari passu.
Where there is more than one lienholder with respect to unpaid wages against the property and assets of an employer and the property and assets are insufficient to satisfy the liens, the lienholders shall share pari passu in the proceeds in the hands of the director for distribution to the lienholders.
Where an employer has failed or refuses to pay any of his employees any wages earned by the employee in accordance with the provisions of section 3, the employee may, in writing, not later than six months after the expiration of the time provided for the payment of wages under section 3, file a complaint with the director respecting the failure or refusal.
A complaint under subsection (1) shall contain such information as may be prescribed by the regulations and as may be required by the director.
The director may, either of his own accord, or upon receiving a complaint respecting unpaid wages under subsection (1), make such investigations and examinations of the books and records of the employer, as may be necessary and where he finds that wages are unpaid by an employer to an employee, the director may, in writing, order the employer to pay those wages to the director; but where he finds that wages are not unpaid as alleged by the employee, he shall by order, dismiss the complaint of the employee.
Order directed to receiver or receivermanager.
Where a receiver or a receivermanager 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.
Where an order is directed to a receiver or receiver-manager under subsection (4) and the receiver or the receiver-manager, as the case may be, does not, in accordance with subsection (12), request the director to refer the matter to the board for a determination, the receiver or receivermanager, as the case may be, shall comply with the order in accordance with this Act and section 96 of The Corporations Act as may be necessary to comply with the order.
Receiver to comply with board's order.
Where a receiver or receiver-manager has, in accordance with subsection (12), 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 receiver-manager shall comply with the order in the manner set out in subsection (5).
Order against corporate director.
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 unpaid wages.
Corporation director may recover from corporation.
Subject to subsection (10), 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.
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.
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 (12), request the director to refer the matter to the board for a determination of the liability of the director or officer of the corporation.
Where under subsection (3) the director receives moneys as unpaid wages due to an employee he shall pay over those moneys to the employee, but where such moneys are received in compliance with an order of the board under section 15 the director shall not pay those moneys over until the time for an appeal from the decision or order of the board has expired or where an appeal is taken, the appeal is either withdrawn, abandoned, dismissed or determined.
Where under this Act, the director orders a person to pay unpaid wages to him, or by order, dismisses the complaint of the employee the director shall also advise the person or the employee, as the case may be, that if he disputes the findings of the director, he may within seven days after the date of the order or within such further period of time as the director may allow, request the director to refer the matter to the board for a determination of the matter, and on receipt of such a request, the director shall, in writing, refer the matter to the board.
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 (12) 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 in the Court of Queen's Bench, and thereupon the order shall be deemed to be a judgment of the court in favour of the director.
For the purposes of this Act, the board or any member thereof has the powers of a commissioner under Part V of The Manitoba Evidence Act.
The board shall make or cause to be made whatever examination of records and other inquiries it deems necessary, including the holding of such hearings as it may deem expedient, to determine the facts with respect to any application made to the board.
The board may receive and accept whatever evidence and information on oath, affidavit, or otherwise it, in its discretion, deems fit and proper, whether admissible as evidence in a court of law or not.
The board shall determine its own procedure, but shall in every case give an opportunity to the employer and any employee concerned to present evidence and make representation.
The board may delegate to one or more of its members any of the functions or duties of the board.
The board or any member of the board designated in writing by the chairman thereof or any person authorized in writing by the board or the chairman, may
(a) inspect and examine all books, payrolls, and other records of any employer that in any way relate to the wages, hours of labour, or conditions of employment affecting any employees;
(b) take extracts from or make copies of any entry in those books, payrolls and records;
(c) require any employer to make or furnish full and correct statements, either orally or in writing in whatever form is required, respecting
(i) the wages paid to all or any of his employees, and
(ii) the hours of labour and conditions of their employment;
and, in the discretion of the board or member or person so authorized require the statements to be made by the employer on oath or to be verified by his statutory declaration;
(d) require any employee to make full disclosure, productions, or delivery of
(i) all records, documents, statements, writings, books, papers, extracts therefrom, or copies thereof that the employee has in his possession or control, or
(ii) other information, either verbal or in writing, and either verified on oath or otherwise as may be directed, that may in any way relate to the wages, hours of labour, or conditions of his employment;
(e) require any employer to make full disclosure, productions, or delivery to the board, or to the member or person so authorized, of
(i) all records, documents, statements, writings, books, papers, extracts therefrom, or copies thereof that the employer may have in his possession or control, or
(ii) other information, either verbal or in writing, and either verified on oath or otherwise as may be directed, that the board considers necessary for the purposes of this Act.
Every member of the board and every person authorized under subsection (1) may administer all oaths and take all affidavits and statutory declarations required or authorized to be made under this Act.
Where complaint not entertained.
Where the director has received a complaint from an employee and
(a) he is satisfied that the employee is proceeding with or has commenced an action for the recovery of the unpaid wages; or
(b) he has received information that the employee was successful in an action for the recovery of the unpaid wages;
he shall not entertain the complaint.
The minister may, where he deems it advisable, require an employer to furnish to him, security in the form of a bond with one or more sureties in such amount and subject to such conditions as may be prescribed in the regulations.
Application of proceeds of bond.
Where, in accordance with the provisions of this Act, it is found that an employer who has furnished a bond under subsection (1) is indebted to any of his employees, the minister may apply the proceeds of the bond towards the payment, pro tanto, of the unpaid wages of the employees and shall notify the employer accordingly.
Failure to furnish bond an offence.
An employer who fails or refuses to furnish security when required to do so under subsection (1) is guilty of an offence and on summary conviction is liable to a fine not exceeding $500.
Notwithstanding subsection (3), where an employer fails to furnish security as required under this section, the Court of Queen's Bench on an application made therefor by the minister, may issue an order prohibiting the employer from carrying on business in the province until that employer furnishes the security required under subsection (1).
Where a complaint is received by the director under section 8 and the director has knowledge or has reason to believe, that a person is or is about to become indebted to the employer for any sum of money, or that person is about to pay the employer a sum of money, the director may, notwithstanding that it has not determined whether or not the employer is indebted to the employee for unpaid wages as alleged, by order, served personally or by registered mail on that person, require him to remit to the director, part of or all of the moneys owing, likely to be owed or about to be paid by that person to the employer.
Failure to comply with order an offence.
A person who receives an order of the director under subsection (1) shall forthwith comply with the order and where he fails or refuses to comply with the order he is guilty of an offence and liable on summary conviction to a fine not exceeding $500.
Notification and receipt of moneys received.
Immediately upon receipt of any money in accordance with this section, the director shall in writing notify the employer concerned and issue a receipt therefor to the person from whom the money was received; and the receipt of the director is a good and sufficient discharge of the liability of the person, to whom the order was made to the employer to the extent of the amount shown on the receipt.
Disposition of moneys received.
Any money received by the director under this section shall be held by the director in trust for the employer concerned and shall be paid to the employee making the complaint or the employer, as the case requires, in accordance with any order made under this Act, forthwith upon the order becoming final by the expiry of any period within which a request for a reference to the board may be made or an appeal may be commenced without any such request being made or appeal being commenced.
An employer who is unable to locate an employee in order to pay him wages shall pay those wages to the director.
Payment by an employer under subsection (1) constitutes, to the extent of the payment, a discharge of the employer in respect of the wages owing.
Disposition of money by director.
All money received by the director under this section on account of wages owing shall be paid to the employees to whom the wages are owing; but where the director is unable within one month to locate an employee, the money received on account of the wages owing him, shall be held in trust for the employee.
Investigations and hearings by board.
The board, upon receipt of a complaint under subsection 8(12) shall, after giving written notice to the parties, carry out such investigation, as it considers adequate and hold such hearings as it deems expedient to consider and determine the subject matter of the complaint.
If, after the completion of an investigation under subsection (1) the board finds that the employer is indebted to the employee as alleged or that the employer is indebted to the employee in an amount greater or less than the amount alleged, the board shall by written order require the employer to pay over to the director forthwith, the amount of wages found to be unpaid.
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(l)(c) thereof applies, with such modifications as the circumstances require, to any appeal taken.
The director is entitled to be heard, by counsel or otherwise, upon the argument of any appeal.
Evidence of compliance with subsection 15(2).
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.
Except as may be otherwise provided in this Act, every person who neglects or fails to comply with any provision of this Act or the regulations is guilty of an offence and liable, on summary conviction to a fine not exceeding $500.
An employer who fails or neglects to comply with an order under subsection 8(3) or an order under subsection 15(2) is guilty of an offence and liable on summary conviction, for every day during which the offence continues, where the employer is an individual, to a fine not exceeding $100., or to imprisonment for a term not exceeding three months, or to both such fine and imprisonment and where the employer is a corporation, to a fine not exceeding $1,000.
Where a judge or a magistrate finds an employer guilty of an offence under subsection (2), and that moneys payable as wages are still unpaid, the judge or magistrate shall, in addition to any penalty imposed under subsection (2). order the employer to pay to the director the amount of wages that was found to be unpaid by the employer to the employee or employees as the case may be.
A copy of an order to pay wages made under subsection (3) may be filed by the director in the Court of Queen's Bench, and thereupon the order shall be deemed to be a judgment of the court in favour of the director.
No prosecution for an offence under this Act or the regulations shall be instituted after the expiration of one year after the commission of the alleged offence.
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.
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.
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.
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.
Public official to act for employee.
Where under any Act of the Legislature an employee alleges that an employer has failed or refuses to pay wages due and payable to that employee, the Attorney-General may at the request of the Minister of Labour, authorize a member of his department to act for and on behalf of that employee in any proceeding that may be necessary to recover the unpaid wages for the employee.
Prohibition against discharge of employee.
No employer or person acting on behalf of the employer shall discharge or threaten to discharge, an employee because
(a) the employee has given information to or has requested information or advice from, an officer of the Department of Labour; or
(b) the employee has testified or is about to testify; or
(c) the employer believes that the employee may testify; or
(d) the employee has filed or is about to file a complaint with the director or the board;
with respect to any investigation, proceedings or other matter under this Act.
Where an employee informs the board that he was discharged or his employment was terminated for reasons mentioned in subsection (1), the board shall inquire into the allegation, holding such hearings for the purpose as may be required, and if it is satisfied the employee's allegation is true it may order the employer to reinstate the employee in his employment with or without such compensation as it deems reasonable.
Where in this Act power is vested in the director to do or perform any act or thing, that act or thing may be done by any member of the Department of Labour as may be designated by the minister.
Any notice, order or other paper or document required or authorized to be served or sent for the purposes of this Act, may be served or sent by delivering it to or at the residence of the person on or to whom it is to be served or sent, or where that person is an employer, by delivering it or a true copy thereof, to or at his residence or to the employer, his agent or to any person who is apparently in charge of the establishment or place of business of the employer.
Service of documents continued.
A notice, order or other paper or document to which subsection (1) refers may also be served or sent by post by mailing it by registered mail or certified mail with postage prepaid addressed to the person for whom it is intended.
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 subsection (2) 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.
For the purposes of this Act, any notice, order or other paper or document sent through Her Majesty's mail shall be presumed to have been received by the addressee in the ordinary course of mail.
Provisions of this Act to prevail.
Where there is a conflict between the provisions of this Act and those of any other Act of the Legislature, the provisions of this Act prevail.
For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations as are ancillary thereto and are not inconsistent therewith; and every regulation 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
(a) respecting the production of books, records and accounts;
(b) requiring the use in industries or by employers of mechanical or other devices for ascertaining or assisting in ascertaining, or for recording, the time worked by employees;
(c) respecting the particulars to be set out in any application under section 8;
(d) respecting the amount and terms and conditions of any bond required under section 12;
(e) respecting the time within which hearings of the board shall be held;
(f) respecting the amount of and terms and conditions under which moneys will be advanced to an employee or recovered from an employer under section 19; and
(g) respecting such other matters as may be deemed necessary for the carrying out of the provisions of this Act.
Where any provision in a regulation made under clause 25(f) is in conflict with any provision of The Financial Administration Act, the provision in the regulation prevails.
The Crown in right of Manitoba is bound by this Act.