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

R.S.M. 1987, c. V20

The Vacations with Pay Act

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

Definitions.

1

In this Act,

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

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

"employer" means any person, firm, corporation, agent, manager, representative, contractor, subcontractor, or principal, having control or direction of, or responsible, directly or indirectly, for the employment, of, an employee; ("employeur")

"market gardening" means the cultivation of a tract of land principally for the production of seedlings and matured plants of table vegetables, but does not include landscape gardening or an operation of which the major portion of the products are flowering plants or ornamental shrubs or trees; ("culture maraîchère")

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

"regular working hours" as applied to any period means the aggregate for that period of the number of hours in each day of that period that is recognized as the normal working shift for that day in the employment in which an employee is working; ("heures normales de travail")

"special holiday" means any day for which an employee is entitled under any Act, law, custom, or agreement, or under his contract of service, to be paid wages without being present at work; ("congé spécial")

"vacation allowance" means an amount required to be paid under section 10 or under section 11; ("indemnité compensatrice de congé")

"vacation with pay" means a vacation with pay to which an employee is entitled under this Act; ("congé payé" )

"wages" includes salary; ("salaires" )

"working day" means a day on which an employee is required to work in his normal working schedule. ("jour ouvrable")

Application of Act.

2

This Act applies to employers and employees in every industry, business, trade, occupation and activity, excepting

(a) employers and employees who are engaged in industries, businesses, trades, occupations or activities which are within the exclusive legislative authority of the Parliament of Canada;

(b) employers and employees who are engaged in agriculture, ranching or market gardening;

(c) persons employed in domestic service in a private family home and remunerated by a member of that family where they are not employed for more than 24 hours in any week by the same employer and employers of persons in domestic service in private family homes where they do not employ the persons for more than 24 hours in a week; and

(d) persons who are employed in a private family home and paid by a member of that family where the persons are employed as sitters 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, and employers of such persons.

Crown bound.

3

The Crown in right of the province is bound by this Act; and this Act applies to

(a) every board, commission, association, or body, whether incorporated or unincorporated, all the members of which, or all the members of the board of management or board of directors of which, are appointed by the Lieutenant Governor in Council; and

(b) The University of Manitoba.

Annual vacation.

4(1)

Subject as herein otherwise provided, every employer shall give to each of his employees to whom this Act applies and who becomes entitled thereto, an annual vacation with pay.

Pay in lieu of vacation.

4(2)

Subject as herein otherwise provided, every employer shall pay to each of his employees to whom this Act applies and who leaves the employment of the employer for any reason and is entitled thereto, a vacation allowance.

Two weeks vacation.

5(1)

Every employee to whom this Act applies is entitled, after each year of service with any one employer during the first four years of employment with the employer, to an annual vacation of two weeks.

Employee to meet requirements.

5(2)

Where an employee has completed a year of employment as referred to in subsection (1), he is entitled to a two week vacation only if he meets the requirements of section 6 in respect of a year's service and if he does not meet those requirements he is entitled to benefits as provided for under subsection 11(2).

Three weeks vacation.

5(3)

Subject to subsection (4), where an employee to whom this Act applies has worked for the same employer for at least 50 % of the regular working hours in each of four years in the preceding 10 years, the employee is entitled to an annual vacation of three weeks for each year of service subsequent to the fourth year.

Employee to meet requirements.

5(4)

Where an employee has completed the four year period of employment referred to in subsection (3), he is entitled to a three week vacation only if he meets the requirements of section 6 in respect of any year of service subsequent to the four year period and if he does not meet such requirements he is entitled to benefits as provided for under subsection 11(2).

Special holidays.

5(5)

Where a special holiday occurs during the period of a vacation with pay, the period of the vacation with pay shall either be lengthened by one working day or the employee

(a) shall be granted another day off with pay not later than 60 days following his vacation with pay; or

(b) shall be granted another day off with pay at a time mutually agreed to between the employer and the employee.

Where business is sold or merged.

5(6)

Where the business in which an employee is employed is, by sale, lease, merger or otherwise, transferred from one employer to another employer, the employment of the employee by the two employers before and after the transfer of the business shall, for the purposes of this Act, be deemed to be continuous with one employer, notwithstanding the transfer.

Meaning of the year's service.

6(1)

For the purposes of this Act, an employee shall be deemed to have completed a year's service with an employer only if the employee has, subject as hereinafter provided, worked for not less than 95% of the regular working hours during a continuous 12 month period.

Service of worker receiving compensation.

6(2)

Where, by reason of an injury arising out of, and in the course of, his employment with an employer, an employee has been in receipt of compensation under The Workers Compensation Act, the board, in determining whether the employee has completed a year's service with that employer within the meaning of subsection (1), may find that he has completed such service if he has worked for an employer during 12 months, not continuously, but interrupted only by the period during which he was in receipt of that compensation.

Computation of regular working hours.

6(3)

In computing, for the purposes of this Act, the regular working hours of any period worked by an employee, the regular working hours of the following periods shall not be included:

(a) the period of a vacation;

(b) the aggregate of periods, not exceeding 30 working days in all, comprising

(i) time during which the employee has been authorized by his employer to be absent from work, and

(ii) time in respect of which the employee files with his employer a certificate signed by a duly qualified medical practitioner showing that the employee was not, in the opinion of the medical practitioner, fit to work during that time by reason of illness.

Beginning of 12 month period.

6(4)

A continuous 12 month period to which reference is made in subsection (1) shall be deemed to have begun on the latest of the following dates:

(a) the date on which an employee's employment with his employer actually began;

(b) the date on which an employee became entitled to an annual vacation with pay under this Act, or under any other Act, law, custom, or agreement, or under his contract of service.

Notice of date of vacation to start.

7(1)

Every employer shall notify each of his employees who becomes entitled to a vacation with pay of the date on which the vacation begins.

Time of giving notice.

7(2)

Unless the employer and the employee agree to a shorter period of notice, the notice required under subsection (1) shall be given at least 15 days before the date on which the employee is to start his vacation with pay.

Vacation within ten months of entitlement.

7(3)

Every employee entitled to a vacation with pay shall receive the vacation within 10 months after the date on which he became entitled to it.

Period of notice not to form part of vacation.

7(4)

Where an employer or an employee gives notice of termination of employment

(a) the period or any part of the period of the notice shall not form part of any annual vacation to which the employee is entitled; and

(b) payment to the employee of all or any part of the vacation allowance to which he is entitled under this Act is not payment for the period of notice referred to in clause (a).

Vacation wages payable.

8(1)

Subject as herein otherwise provided, every employer shall pay to each of his employees who is entitled to a vacation with pay, wages in respect of the vacation in an amount equal to the wages that the employee would earn if he worked during the whole of the regular working hours of the vacation at the rate of wages prevailing in respect of the employee at the beginning of the vacation.

Calculation of wages of employees on incentive basis.

8(2)

Where an employee works on an incentive basis, the amount of the wages payable under subsection (1) shall be calculated on his average weekly earnings for regular working hours during the six months immediately preceding the beginning of the vacation.

Inclusion of cash value of board and lodging.

8(3)

Where an employee receives from his employer as part of his remuneration meals or living quarters, or both, or a cash allowance in lieu thereof, if, during a vacation with pay given to him, the employee will not continue to receive such meals or living quarters, or both, or an allowance in lieu thereof, the vacation wages paid to the employee under this section shall include an amount equal to the cash value of the meals or living quarters, or both, that the employee would receive if he worked during the whole of the regular working hours of the vacation, or equal to the allowance in lieu thereof that he would receive in respect of the period of vacation period.

How cash value of board and lodging ascertained.

8(4)

The cash value of the meals or living quarters, or both, to which reference is made in subsection (3) shall be deemed to be the amount actually deducted therefor from the wages of an employee by his employer or, where no such deduction is made, either

(a) the amount agreed upon between the employer and the employee as being the cash value thereof; or

(b) if no such amount has been agreed upon, an amount calculated according to any regulations made under The Employment Standards Act respecting amounts to be deducted from wages for meals and lodging furnished by an employer.

Time of payment of vacation wages.

9

Every employer shall pay to each of his employees the vacation wages to which he is entitled under section 8 not later than the day immediately preceding the beginning of the vacation, except that, in the case of an employee whose wages are paid fortnightly, semi-monthly, or less frequently, if the employee so agrees the employer may pay to such employee his vacation wages at the time when his wages are regularly paid to him.

Vacation wages on termination of employment.

10

Where the employment of an employee is terminated and, at the time of the termination

(a) he is entitled to two weeks' vacation with pay for a period of service in respect of which he has not yet received two weeks' vacation with pay, the employer shall, at the time of the termination, pay to him two weeks' vacation wages calculated in accordance with section 8 in addition to any amount he is required to pay to him under section 11:

(b) he is entitled to three weeks' vacation with pay for a period of service in respect of which he has not yet received three weeks' vacation with pay, the employer shall, at the time of the termination, pay to him three weeks' vacation wages calculated in accordance with section 8 in addition to any amount he is required to pay to him under section 11.

Vacation allowance on termination of employment.

11(1)

Where the employment of an employee is terminated and at the time of the termination

(a) he has not been employed for a sufficient length of time since the date on which his employment with the same employer actually began to become entitled to a vacation with pay under section 5: or

(b) he has not been employed for a sufficient length of time since the date on which he last became entitled to an annual vacation with pay under this Act or under any other Act, law, custom, or agreement, or under his contract of service;

the employer shall, at the time of the termination, pay to the employee

(c) not less than 4% of the wages paid to the employee during the regular working hours worked by him since his employment with the employer began or since the date he last became entitled to a vacation with pay, as the case may be; or

(d) where the employee has been employed by the employer for five or more years and has worked for at least 50% of the regular working hours in each of four years in the preceding 10 years, an amount not less than 6% of the wages paid to the employee during the regular working hours worked by him since he last became entitled to a vacation with pay.

Vacation wages after 12 months.

11(2)

Where an employee has worked for an employer during a period of 12 months but has not worked sufficient time in that period to be entitled to a vacation with pay under section 5, the employer shall, at the end of that period of 12 months, pay to the employee

(a) an amount not less than 4% of the wages paid to the employee in respect of regular working hours worked by him during that 12 month period; or

(b) where the employee has been employed by the employer for five or more years and has worked for at least 50% of the regular working hours in each of four years in the preceding 10 years, an amount not less than 6% of the wages paid to the employee in respect of regular working hours worked by him during that 12 month period.

Plants shut down for vacation period.

12(1)

Where, with a view to giving employees a vacation, whether under this Act or otherwise, an employer closes or shuts down, wholly or partly, his plant or other place of business for any period, if an employee who is not at the time of the closure or shut down entitled to a vacation with pay under this Act becomes, or is likely to be, unemployed for the period, the employer shall deal with that employee as may be prescribed in the regulations; and in particular, and without restricting the generality of the foregoing, shall give him

(a) such opportunity to earn wages; or

(b) a vacation for such period not exceeding two weeks and with or without pay;

as may be prescribed in the regulations.

Regulations.

12(2)

Regulations made for the purposes of subsection (1) may prescribe

(a) that before closing or shutting down his plant or other place of business for the purpose mentioned in that subsection, an employer shall file with the board a report showing what provision he proposes to make in respect of his employees who, at the time of the closure or shut down, are not entitled to a vacation with pay; and

(b) that the board may by order approve the report or order that the proposals therein set out be altered to make such other or better provision for those employees as the board, in its discretion, deems reasonable;

and every employer affected thereby shall comply with the regulations and with any order of the board made thereunder.

Vacations for periods of less than a year.

12(3)

Where, in accordance with the regulations made for the purposes of subsection (1), or in accordance with an order of the board made under the regulations, or in accordance with a custom or contract of service, an employer grants to an employee who has not completed a year's service a period of vacation in respect of which he pays an employee an amount equal to the wages that the employee would earn if he worked during the whole of the regular working hours of that period at a rate of wages which complies with section 8, if the period so granted bears the same proportion to two weeks or to three weeks where the employee has been employed by the employer for five or more years as the period of employment in respect of which the period of vacation is granted bears to twelve months, the employer shall be conclusively deemed to have satisfied any requirement under this Act

(a) to grant the employee any vacation with pay in respect of that period of employment; and

(b) to pay any amount to the employee under section 10 or 11 in respect of that period of employment on the termination of the employment;

and the end of the period of employment in respect of which the period of vacation is granted shall be conclusively deemed, for the purposes of subsection 6(3), to be the date on which the employee last became entitled to an annual vacation with pay under this Act.

More favourable provisions.

13(1)

Where under any other Act, or any agreement or contract of service, or under a custom, an employee is entitled to vacation benefits that are more favourable to him than the benefits provided for under subsections 5(1) or (3) of this Act, that other Act, or the agreement or contract of service, or the custom, as the case may be, prevails over subsections 5(1) or (3) of this Act.

Less favourable provisions.

13(2)

Where under any other Act, or any agreement or contract of service, or under any custom vacation benefits are less favourable to the employee than the benefits provided for under subsections 5(1) or (3) this Act, then subsections 5(1) or (3) of this Act prevails over any conflicting provisions of that other Act, or of the agreement or contract of service, or the custom, as the case may be.

Secs. 10 and 11 not affected.

13(3)

Nothing in this section deprives an employee of any rights or benefits he may have or to which he may be entitled, under section 10 or 11.

Reference to board.

14(1)

Where a doubt arises respecting any matter relating to annual vacations with pay and, in particular, and without restricting the generality of the foregoing, with respect to

(a) the date upon which the employee becomes entitled to a vacation with pay under this Act; or

(b) the date upon which the employee is entitled to begin a vacation to which he is entitled; or

(c) the amount of vacation wages or vacation allowance to which a person is entitled under section 8, 10 or 11; or

(d) whether this Act or any provision thereof applies to any person, or the manner in which this Act or any provision thereof applies to any person; or

(e) whether a provision of any other Act, or any agreement or contract of service, or any custom, prevails over subsection 5(1), or whether subsection 5(1) prevails over any conflicting provisions of another Act, or of any agreement or contract of service, or any custom;

the matter may be referred by an employee or his employer to the board, and the board may make an order deciding the matter and. where necessary, directing the employer to pay vacation wages or vacation allowances to an employee, or to grant him a vacation with pay as herein provided, or both.

Effect of order.

14(2)

Unless varied or set aside on appeal as hereinafter provided, an order of the board made under subsection (1) is final and conclusive and binding upon all persons affected thereby, and every person to whom the order applies shall obey it in accordance with its tenor.

Service of order.

14(3)

The board shall cause a copy of each order made under subsection (1) in respect of the matter referred to it to be served on each person affected thereby by mailing it to him, by registered mail, addressed to him at his latest address of which the board has notice, or in care of the solicitor, if any, who appeared on his behalf at the hearing of the matter referred; and the order shall be deemed to have been served on him on the day on which it would normally be delivered in the ordinary course of the mail.

Appeal to Court of Appeal.

14(4)

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

Repayment to an employer prohibited.

15

No employer shall require an employee to return to him, nor shall he accept from an employee, any moneys that he has paid to that employee under this Act.

Vacation books kept by employer.

16(1)

Every employer to whom this Act applies shall at all times keep for a period of at least five years a record to be called a vacation record showing, in the case of each of his employees, such information and particulars as may be prescribed in the regulations.

Incorporation of vacation book in other books.

16(2)

A vacation record may be incorporated in any vacation book or wages book, or other similar book or record, that the employer is required to keep under any other Act of the Legislature.

Inspection of vacation books and obtaining information.

17

The minister or his duly authorized representative may, at any reasonable time,

(a) inspect a vacation record in use for the time being by any employer or any such record or book used by that employer during the preceding two years:

(b) require any employer to verify the entries in his vacation record by statutory declaration or in such manner as the minister or his duly authorized representative may require; and

(c) require any person to furnish, in a form acceptable to the minister or his duly authorized representative, such information as the minister or his duly authorized representative deems necessary for the due administration of this Act or the regulations.

Offences and penalties.

18

Every person

(a) who contravenes, disobeys, neglects to obey, or fails to comply with, any provision of this Act or the regulations, or an order of the board made under the authority of this Act or the regulations; or

(b) with intent to deceive, makes any false or misleading statement in any communication, whether in writing or otherwise, to the minister or his duly authorized representative: or

(c) interferes with, or obstructs, the minister or his duly authorized representative in the exercise of any power conferred upon him by this Act or the regulations;

is guilty of an offence and is liable, on summary conviction, to a fine not exceeding $50. for the first offence, and in default of payment to imprisonment for a term not exceeding 10 days; and for each subsequent offence to a fine of not less than $25. or more than $100., and in default of payment to imprisonment for a term not exceeding 30 days.

Vacation wages and allowances a debt.

19(1)

Vacation wages and vacation allowances that, under this Act, are due and payable by an employer to an employee, are a debt due from the employer to the employee, and may be recovered by action in a court of competent jurisdiction.

Vacation pay deemed to be held in trust.

19(2)

Every employer shall be deemed to hold the vacation wages and vacation allowances accruing due to an employee in trust for the employee whether or not the amount thereof has been kept separate and apart by the employer and the employee has a lien and charge in the amount of the vacation wages and vacation allowances on the assets of the employer.

Regulations.

20

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 Act, has the force of law; and without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations, for the purposes of

(a) subsection 14(1) and specifically with respect to the matters set out in subsection 14(2);

(b) prescribing the information and particulars that shall be shown in vacation records kept by employers under section 16.