Bernardi Consulting Services Inc.
     
HIGHLIGHTS OF MAJOR DEVELOPMENTS IN LABOUR LEGISLATION (2005-2006)
September 1, 2005 to August 31, 2006

 

I. EMPLOYMENT STANDARDS
  1. Compassionate Care Leave and Benefits
  2. Parental Insurance
  3. Emergency Leave and Related Matters
  4. Minimum Wages
  5. Prohibited Wage Deductions
  6. Banking Industry
  7. Construction Industry
  8. Garment Industry
  9. Recorded Visual and Audio-Visual Entertainment Production Industry
  10. Apprentices of Defined Trades
  11. Retail Establishments
  12. Administration and Enforcement
  13. Wage-Earner Protection Program (WEPP)
  14. Human Rights in the Workplace
  15. Mandatory Retirement
  16. Pay Equity
  17. Whistleblower Proection

II. INDUSTRIAL RELATIONS

  1. Legislation of General Application
  2. Public and Parapublic Sectors
  3. Bankruptcy and Insolvency
  4. Emergency Legislation
  5. Construction Industry
  6. Fishing Industry
  7. Collective Agreement Expiry Date (Exception)

 

III. OCCUPATIONAL HEALTH AND SAFETY

  1. Legislation of General Application
  2. Protection from Tobacco Smoke
  3. Violence in the Workplace and Persons Working Alone
  4. Hazardous Substances
  5. Biological Hazards
  6. Boilers and Pressure Vessels
  7. First Aid
  8. Road Transport (Hours of Service)
  9. Mine Safety
  10. Construction Safety
  11. Safety in Diving Operations
  12. Trades Qualification

INTRODUCTION

Many important changes to employment standards laws were made during the period under review. In British Columbia, the Employment Standards Act was amended to provide for the right to compassionate care leave for qualifying employees. In the federal jurisdiction, a regulation under the Employment Insurance Act has expanded the list of persons in respect of whom an employee can claim compassionate care benefits. In addition, the legislative assembly of Ontario amended the Employment Standards Act, 2000 in order to provide employees with the right to take unpaid leave during a declared state of emergency.

Other significant developments include: the adoption of regulations in five jurisdictions (Manitoba, New Brunswick, Prince Edward Island, Quebec and Yukon) to increase minimum wage rates; changes to administration and enforcement provisions in Saskatchewan, British Columbia and Ontario; and the enactment of legislation in the federal jurisdiction intended to guarantee workers quick payment of unpaid wages where their employer has become bankrupt or subject to a receivership. It should also be mentioned that Nova Scotia made numerous amendments to provisions concerning workers who are employed in retail businesses.

With respect to human rights, two provinces (Ontario and Newfoundland and Labrador) adopted legislation with a view to eliminating mandatory retirement at the age of 65 years. In the field of pay equity, Quebec made changes to its legislation in order to facilitate its application to the public sector. Finally, legislation was introduced in both the federal jurisdiction and Manitoba to protect whistleblowers.

There were several developments in the area of labour relations legislation. Nova Scotia passed legislation to amend the Trade Union Act, in order to establish an expedited grievance arbitration procedure (that will also be applicable under other collective bargaining laws in the province) and to add new provisions regarding unions’ duty of fair representation. In the broader public sector, the federal Public Service Labour Relations Act was proclaimed into force and Ontario made changes to the scope of the Public Sector Labour Relations Transition Act, 1997. The Parliament of Canada passed legislation to amend the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act, in order to provide procedures to facilitate the renegotiation of collective agreements under defined circumstances. Moreover, two emergency legislative measures were adopted in the past year: in British Columbia, to settle a dispute in the education sector and, in Quebec, to forestall a potential labour dispute in the public service. Quebec also amended the Act respecting labour relations, vocational training and manpower management in the construction industry, primarily to help prevent the use of intimidation, discrimination and coercion by certain elements in the construction sector. Also worth mentioning is the signing of an agreement on labour mobility in the construction industry by the Quebec and Ontario governments, which has led to regulatory adjustments in each province. Finally, Newfoundland and Labrador made significant amendments to the Fishing Industry Collective Bargaining Act to establish new collective bargaining procedures for fishers and processors.

In addition, several jurisdictions made legislative and regulatory amendments to their occupational health and safety legislation during the past year, including Newfoundland and Labrador (extending certain legislative provisions to health and safety designates, changing the limitation period for prosecutions); the federal jurisdiction (requiring the development, implementation and monitoring of a hazards prevention program in the workplace); Ontario (adopting a new Confined Spaces Regulation, providing for the publication of the name of convicted offenders); Prince Edward Island (setting new safety requirements, increasing the maximum amount of fines); and British Columbia (making various changes to health and safety requirements).

Other legislative changes in the area of occupational health and safety have dealt with more specific issues. Three jurisdictions—Alberta, Nova Scotia and the Northwest Territories—have proclaimed or enacted new legislation to prohibit smoking in indoor workplaces and public places. Prince Edward Island adopted new regulatory provisions to deal with violence in the workplace and to improve the safety of persons working alone. Ontario also adopted new or revised occupational exposure limits for 23 workplace hazardous substances. In addition, to deal with certain biological risks, legislation regarding the mandatory testing of bodily substances in defined circumstances was proclaimed in Saskatchewan. Similar legislation was passed (but not yet proclaimed) in Alberta and introduced in Ontario’s legislature. Saskatchewan also revised provisions of the Occupational Health and Safety Regulations, 1996 dealing with exposure to infectious materials or organisms. This includes new requirements to use safe needles in health care and other defined workplaces. Nova Scotia also enacted legislation to reduce the risk of needlestick injuries.

Lastly, amendments were also made to regulations pertaining to pressure equipment safety (in Alberta), first aid (in Newfoundland and Labrador), hours of service for commercial vehicle drivers (in the federal jurisdiction), mine safety (in Quebec, Newfoundland and Labrador and the federal jurisdiction), construction safety (in Ontario), and safety in diving operations (in Nova Scotia and Newfoundland and Labrador).

I. EMPLOYMENT STANDARDS

A. Compassionate Care Leave and Benefits

British Columbia has amended the Employment Standards Act to provide for the right to compassionate care leave for qualifying employees. The Employment Standards (Compassionate Care Leave) Amendment Act, 2006 (Bill 8) was assented to on April 8, 2006. Under this Act, an employee has the right to take up to eight weeks of unpaid leave to provide care or support to a family member if a medical practitioner issues a certificate stating that the family member has a serious medical condition with a significant risk of death within 26 weeks (or another period prescribed by regulation). A "family member" is defined as a member of the employee’s immediate family and any other prescribed individual. The "immediate family" of an employee has the same definition as that which applies to family responsibility and bereavement leave (i.e., the spouse, child, parent, guardian, brother, sister, grandchild and grandparent of the employee or a person who lives with the employee as a member of his/her family).

There are no length-of-service or other eligibility conditions under this Act in order to qualify for compassionate care leave. However, an employee is required to provide a copy of the medical certificate to his/her employer as soon as practicable. Where two or more employees provide care or support to the same person, they are not required to share the leave.

Although the eight weeks of leave can be broken up, each period of leave must have a minimum duration of one week. Moreover, an employee can only exercise his/her right to leave during the period that begins on the first day of the week in which the medical certificate is issued (or the first day of the week in which the employee begins leave) and ends on the last day of the week in which a period of 26 weeks (or another period prescribed by regulation) has elapsed since the date that the employee began his/her leave. However, if the family member dies before the end of this period, the right to leave ends on the last day of the week in which the death occurs.

It should be noted that if the family member survives beyond the end of the period referred to in the medical certificate, the employee has the right to take further compassionate care leave, provided he/she gives his/her employer a new medical certificate.

The job protection measures (including the protection of seniority and benefits) that apply with respect to maternity, parental, family responsibility, bereavement and jury duty leave also apply to an employee taking compassionate care leave. Moreover, the periods of employment preceding and following the leave are deemed to be continuous for the purposes of pensions, medical plans and other benefits, as well as for vacation entitlement and length of service when calculating notice of termination. Finally, the employee can opt to continue to contribute his or her share of any benefit plan during the leave, in which case the employer must also continue to contribute. If the employer pays the total cost of a plan, he/she must continue to make the payments as if the employee were not on leave.

The Act was proclaimed into force on April 27, 2006.

It is worth mentioning that legislative provisions for compassionate care leave now exist in all Canadian jurisdictions, with the exception of Alberta and the Northwest Territories. Such provisions first came into force in Saskatchewan in 1995, in Quebec and Prince Edward Island in 2003, and the federal jurisdiction, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Nunavut, Ontario and Yukon in 2004. However, there are noticeable differences across the country with respect to the maximum duration of leave, eligibility requirements (i.e., required length of service and minimum notice periods), the definition of "family member" (i.e., the persons in respect of whom an employee may take leave) and the manner in which leave may be taken (i.e., sharing and/or fractioning of leave), as well as the protection of benefits and seniority during leave. Comparative information regarding compassionate care leave is available on the Human Resources and Social Development Canada website.1

Finally, in the federal jurisdiction, a new regulation adopted under the Employment Insurance Act has expanded the list of persons in respect of whom an employee can claim compassionate care benefits. Note that eligibility to take compassionate care leave under employment standards legislation is distinct from eligibility to claim compassionate care benefits under Employment Insurance (EI).

Under the Employment Insurance Act and Regulations, claimants who meet eligibility requirements2 can take up to six weeks of compassionate care benefits within a 26-week period (or such shorter period as may be prescribed) to provide care or support to a "family member", as defined, where the latter, as attested by a medical certificate, has a serious medical condition with a significant risk of death within that period. When these provisions were first enacted, a "family member" included only the claimant’s spouse or common-law partner, child (including the child of a spouse or common-law partner), or parent (including the spouse or common-law partner of the claimant’s parent). Under the Regulations Amending the Employment Insurance Regulations (SOR/2006-135), the definition of "family member" has been amended to also include siblings, grandparents, grandchildren, in-laws, aunts, uncles, nieces, nephews, foster parents, guardians, wards and gravely ill persons who consider the claimant to be like a close relative.

This Regulation came into force on July 14, 2006.


 

B. Parental Insurance

In Quebec, Order-in-Council 984-2005 of October 19, 2005 fixed January 1, 2006 as the date of coming into force of any section not yet in force of the Act respecting parental insurance and of the Act to amend the Act respecting parental insurance and other legislative provisions.

A summary of the Act respecting parental insurance is available in pp. 14-16 of the Highlights of Major Developments of Labour Legislation, 2000-2001. The Act to amend the Act respecting parental insurance and other legislative provisions is described in p. 4 of the Highlights of Major Developments of Labour Legislation, 2004-2005.3

It should also be mentioned that the Regulation under the Act respecting parental insurance (O.C. 986-2005) took effect on January 1, 2006.

To determine eligibility under the parental insurance plan established under the Act respecting parental insurance, this Regulation specifies, among other things, the extent to which a person must contribute under the plan established under the Employment Insurance Act, defines an interruption in earnings and determines the work that comes within the scope of the Act and the work that is excluded.

In addition, this Regulation determines the rules for allocating benefit weeks if both parents take the weeks concurrently, do not agree on how they should be allocated, or do not reside in the same province.

This Regulation provides for the cases in which a person’s qualifying period may be extended or differed from the period set out in the Act respecting parental insurance. This Regulation also specifies, in relation to the benefit period, the time when the qualifying period ends and the reasons that may justify an extension of the qualifying period.


 

C. Emergency Leave and Related Matters

In Ontario, the Emergency Management Statute Law Amendment Act, 2006 (Bill 56) brought significant amendments to the Emergency Management Act, including a change in the title of the Act to the Emergency Management and Civil Protection Act. In addition, the Act has been amended to include a "disease or other health risk" as a recognized cause of an emergency for which a state of emergency can be declared in the province (the other recognized causes of an emergency are the forces of nature, an accident, or an act that is intentional or otherwise).

Notably, Bill 56 allows emergency orders to be made during a declared state of emergency, including an order authorizing any person, or class of persons, to render services that they are reasonably qualified to provide. Such an order can also stipulate the terms and conditions of service of those providing and receiving services, including the payment of compensation to those providing services. Bill 56 further prohibits the termination of employment of a person for the reason that he/she is providing services under an emergency order.

The contravention of an emergency order can be restrained by the order of a judge of the Superior Court of Justice. Moreover, Bill 56 makes it an offence to fail to comply with an emergency order or to interfere with or obstruct any person in the exercise of a power or the performance of a duty conferred by an emergency order. Unless specifically provided otherwise, an emergency order prevails over any other order, statute, regulation rule or bylaw in case of conflict; however, the Occupational Health and Safety Act, or any regulation made under that Act, prevails over an emergency order and the Emergency Management and Civil Protection Act.

In addition, Bill 56 has amended the Employment Standards Act, 2000 (ESA) to provide for the right to an unpaid leave of absence from work due to a declared state of emergency (referred to as "emergency leave"). Accompanying this change, the unpaid emergency leave of 10 days per year that is also provided under the ESA has been renamed "personal emergency leave".

An employee is entitled to take emergency leave for as long as he/she is not performing the duties of his/her position because of the declared state of emergency and

  • an emergency order that applies to him/her;4
  • an order made under the Health Protection and Promotion Act that applies to him/her;
  • he/she is needed to provide care or assistance to one of the following individuals: his/her spouse;5 a parent,6 step-parent or foster parent of the employee or his/her spouse; a child, step-child or foster child of the employee or his/her spouse; a grandparent, step-grandparent, grandchild or step-grandchild of the employee or of his/her spouse; the spouse of a child of the employee; the employee’s brother or sister; or a relative of the employee who is dependent on him/her for care and assistance; or
  • another prescribed reason.

The entitlement to leave ends on the day that the declared state of emergency is terminated or disallowed by the Legislative Assembly—unless the employee is absent due to an emergency order that has been extended under the Emergency Management and Civil Protection Act, in which case the entitlement to leave continues during the period of extension.

An employee who takes such leave is required to advise his/her employer. Furthermore, the employer can require the employee to provide reasonable evidence of his/her entitlement to take leave. The job protection measures that apply with respect to maternity leave, parental leave, family medical leave, and personal emergency leave also apply to an employee taking emergency leave during a declared state of emergency.

Finally, an employer must retain all notices, certificates, correspondence and other documents given to or produced by him/her that relate to an employee taking emergency leave or family medical leave until three years after the date on which the leave expires. As was the case before, this provision also applies with respect to an employee taking personal emergency leave, pregnancy leave or parental leave under the ESA.

Bill 56 was assented to on June 20, 2006. The amendments mentioned above came into force by proclamation on June 30, 2006.


 

D. Minimum Wages

Since September 2005, five Canadian jurisdictions have issued regulations to amend minimum wage rates.

In Manitoba, the Minimum Wages and Working Conditions Regulation (amendment) (Reg. 80/2006) under the Employment Standards Code increased the general minimum wage rate from $7.25 an hour to $7.60 an hour, effective April 1, 2006. This rate will increase to $8.00 an hour on April 1, 2007.

In New Brunswick, the Minimum Wage Regulation (Reg. 2005-154) under the Employment Standards Act repealed and replaced the previous Minimum Wage Regulation, which was issued in 2004.7 This Regulation increased New Brunswick’s minimum wage rate, which applies for the first 44 hours worked in a week, from $6.30 to $6.50 an hour. In addition, for each additional hour worked in the same week, the minimum rate was increased from $9.45 to $9.75 an hour (reflecting the overtime rate). Furthermore, the minimum wage for employees whose hours of work are unverifiable and who are not strictly employed on a commission basis was also raised from $277.20 to $286.00 per week. These rates came into effect on January 1, 2006.

Additional increases took effect on July 1, 2006, under the Minimum Wage Regulation – Employment Standards Act (Reg. 2006-40). This Regulation repealed and replaced Regulation 2005-154. Under the new Regulation, the general minimum wage rate increased from $6.50 to $6.70 an hour (applying for the first 44 hours worked in a week). Moreover, for each additional hour worked in the same week, the minimum hourly wage was increased from $9.75 to $10.05. In addition, the minimum wage for employees whose hours of work are unverifiable and who are not strictly employed on a commission basis was also raised from $286 to $294.80 per week.

As was the case before, an employer is prohibited from deducting, from the minimum wage, an amount for board or lodging where the employee has not received this service.

Moreover, in Prince Edward Island, the Minimum Wage Order Amendment (EC2005-518) under the Employment Standards Act increased the minimum wage rate from $6.80 an hour to $7.15 an hour, effective April 1, 2006. This rate will increase to $7.50 an hour on April 1, 2007, pursuant to the Minimum Wage Order Amendment (EC2006-361).

Effective May 1, 2006, under Quebec’s Regulation to amend the Regulation respecting labour standards (O.C. 306-2006), the general minimum wage rate increased from $7.60 an hour to $7.75 an hour, while the rate for employees who receive gratuities or tips increased from $6.85 an hour to $7.00 an hour. In addition, this Regulation increased the rates for employees assigned mainly to non-mechanized operations relating to the picking of raspberries, strawberries or apples. As was the case before, these rates are established on the basis of yield (for example, the rate for an employee assigned to the picking of raspberries increased from $0.467 to $0.476 per 250 ml container).

Finally, in Yukon, the general minimum wage rate increased from $7.20 an hour to $8.25 an hour on May 1, 2006, pursuant to a decision of the Employment Standards Board under the Employment Standards Act. Furthermore, effective April 1, 2007, and on April 1 of each subsequent year, this rate will increase by an amount corresponding to the annual increase for the preceding year in the Consumer Price Index (CPI) for the city of Whitehorse. To date, Yukon is the only jurisdiction in Canada to tie wage increases to the CPI.


 

E. Prohibited Wage Deductions

Under the Employment Standards Act Regulations of Prince Edward Island, an employer is prohibited from making deductions from an employee’s pay, except for the reasons specified by the Regulations (e.g. where the deduction is required or authorized by statute or it is mutually agreed upon by the employer and employee). Effective March 25, 2006, Regulation EC2006-137 has amended the Employment Standards Act Regulations to specify that tips and gratuities are the property of the employee for whom they are intended.

Under this Regulation, where an employee’s tips or gratuities are based on the employer’s bills in respect of banquets, bus tours or other similar events, the employer must pay the tips and gratuities to the employee within 60 days of the date of the event. In addition, where an employer imposes a surcharge or other charge on a customer in lieu of the payment of tips or gratuities to an employee, all of the amounts collected in this respect are deemed to be the property of the employee and must be distributed to him/her no later than the time of the next pay period. An employer cannot pass on any of its administrative charges, including credit card or debit card charges, to an employee.

Furthermore, an employer is prohibited from withholding, or treating as the wages or partial wages of an employee, the tips or gratuities intended for the latter (or the amounts collected as a surcharge or other charge on a customer in lieu of such tips or gratuities), unless the employee agrees that they are to be calculated as additional wages. Moreover, an employee cannot be required to share a tip or gratuity with the employer or owner of a work establishment.

Finally, an employer can pool tips and gratuities for the benefit of all or some of its employees; however, this does not give the employer a proprietary interest in the tips and gratuities that are pooled. Moreover, an employer must advise an employee in writing of any policy of pooling tips and gratuities that is in effect at the workplace at the time that the latter is hired.


 

F. Banking Industry

In the federal jurisdiction, the Banking Industry Commission-paid Salespeople Hours of Work Regulations (SOR/2006-92) under the Canada Labour Code came into force on May 11, 2006. Under this Regulation, employees who work as commission-paid salespeople in the banking industry in Canada are exempt from the application of the provisions of the Code concerning standard and maximum hours of work and the overtime rate.


 

G. Construction Industry

During the period of time covered by this document, three Canadian jurisdictions amended regulations that apply to workers in the construction industry.

First, in Manitoba, the Construction Industry Minimum Wage Regulation (119/2006) under the Construction Industry Wages Act came into force on June 1, 2006. This Regulation repealed and replaced the Heavy Construction Minimum Wage Regulation, the Building Construction (Rural) Minimum Wage Regulation and the Building Construction (Winnipeg) Minimum Wage Regulation under the Construction Industry Wages Act.

Employees who work in the heavy construction sector

Under this Regulation, the occupational classifications for employees working in the heavy construction sector have been amended, and their number increased from seven to ten, to reflect changes in this sector. Accompanying these amendments, new minimum wage rates apply to all classifications as of June 1, 2006. Furthermore, these rates will increase on January 1, 2007 (e.g. the minimum rate for a mobile crane operator is $16.75 an hour as of June 1, 2006 and will increase to $17.70 an hour on January 1, 2007).

As was the case before, standard working hours for employees in this sector working in Winnipeg are 48 per week, from November 1 of each year to March 31 of the following year. This Regulation specifies that the standard working hours from April 1 to October 31 of each year are 50 per week. Moreover, with respect to employees in this sector working outside of Winnipeg, standard working hours are 50 per week, regardless of the time of year.

Employees who work in the industrial, commercial or institutional (ICI) sector of the construction industry

Minimum wage rates for employees working in the industrial, commercial or institutional (ICI) sectors of the construction industry are established in accordance with occupational classification and location of employment. Previously, four different rates could apply to one classification, depending on the location of employment (i.e., one rate for Winnipeg and one for each of three areas outside of Winnipeg). Under this Regulation, only two rates now apply to each occupational classification, depending on the location of employment (inside or outside of Winnipeg). Moreover, the occupational classifications for employees in these sectors have been amended to reflect changes to the apprenticeship system in the province. Accompanying these amendments, new minimum wage rates apply to all classifications as of June 1, 2006. Furthermore, these rates will increase on October 1, 2006.

As was the case before, a person who works on a "major building construction project" (as defined), regardless of the place of his/her employment, must be paid the minimum wage rate that applies to an employee in the same occupational classification who is employed in Winnipeg. However, the definition of a "major construction project" has been amended to include a project of at least 25,000 square feet (rather than 50,000 square feet, as was previously the case).

Finally, all employees in the ICI sectors have the same standard hours of work (i.e. ten hours a day and 40 hours a week). Previously, standard hours of work were based on occupational classification and location of employment.

The Employment Standards Act of Yukon provides that an employer who has a contract with the government of Yukon, even indirectly, for heavy construction or for the construction of buildings, roads, sewers or water mains, must pay an employee hired to fulfil the contract at least the applicable minimum rate set by the Fair Wage Schedule (Schedule) under the Act. Under the Order Amending the Fair Wage Schedule (2005) (O.I.C. 2005/193), the wage rates provided in the Schedule for these employees have increased, effective December 1, 2005, as follows:

  • from $23.50 per hour to $26.06 per hour, for an employee whose position is included in category "A" of the Schedule (e.g. an electrician or a heavy equipment mechanic);
  • from $21.06 per hour to $23.36 per hour, for an employee whose position is included in category "B" (e.g. a blaster or a driller);
  • from $18.68 per hour to $20.72 per hour, for an employee whose position is included in category "C" (e.g. a surveyor’s helper or a blaster’s helper); and
  • from $16.95 per hour to $18.80 per hour, for an employee whose position is included in category "D" (e.g. a driller’s helper or a flagperson).

Furthermore, this Order provides for an annual increase to the rates in the Schedule, effective April 1, 2006, and again on April 1 of each subsequent year, by an amount corresponding to the annual increase for the preceding year in the Consumer Price Index for the city of Whitehorse.

It should be mentioned that in Nova Scotia, Regulation 172/2005 brought amendments to the Minimum Wage Order (Construction and Property Maintenance) under the Labour Standards Code.

Among other things, the Minimum Wage Order (Construction and Property Maintenance) provides the minimum wage and overtime rates that are applicable to persons employed in construction, property maintenance work and related activities.8 Under Regulation 172/2005, the following persons are excluded from the application of this Order: duly qualified practitioners or students of specified professions;9 supervisors and managers; and employees who hold confidential positions. The other exclusions provided under the Order remain in force (e.g. apprentices subject to an apprenticeship agreement in accordance with the Apprenticeship and Trades Qualifications Act).

Regulation 172/2005 came into force on August 26, 2005.


 

H. Garment Industry

Under Quebec’s Regulation to amend the Regulation respecting labour standards specific to certain sectors of the clothing industry (O.C. 307-2006), the minimum wage payable to employees who are subject to the Regulation respecting labour standards specific to the clothing industry increased from $8.10 an hour to $8.25 an hour, effective May 1, 2006.


 

I. Recorded Visual and Audio-visual Entertainment Production Industry

Two regulations issued under the Employment Standards Act, 2000 of Ontario (O. Regs. 550/05 and 552/05) have amended certain provisions applicable to workers in the recorded visual and audio-visual entertainment production industry.

Under these Regulations, the Exemptions, Special Rules and Establishment of Minimum Wage Regulation was amended to provide that an employee in the recorded visual and audio-visual entertainment production industry is exempted from Part VII of the Act, which governs hours of work and eating periods. The "recorded visual and audio-visual entertainment production industry" includes the industry of producing visual or audio-visual recorded entertainment intended to be replayed in cinemas or on the Internet, as part of a television broadcast, or on a VCR or DVD player or similar device, but does not include the industry of producing commercials (other than trailers), video games or educational materials.

Accompanying these changes, the Terms and Conditions in Defined Industries – Production of Recorded Visual or Audio-Visual Entertainment Regulation was revoked. This Regulation provided that an employer and employee in this industry could agree to substitute an eight-hour daily "hours free from work" period for the 11-hour daily period that is required under the Act.

Regulations 550/05 and 552/05 came into force on October 28, 2005.


 

J. Apprentices of Defined Trades

In Manitoba, Regulations 106/2006 and 107/2006 under the Apprenticeship and Trades Qualification Act provide for increases to the minimum wage rates applicable to apprentices who are subject to the Trade of Ironworker Regulation or the Trade of Agricultural Equipment Technician Regulation.

Effective May 1, 2007, the increases will apply to apprentices whose apprenticeship agreements were registered by the Director of Apprenticeship and Trades Qualifications appointed under the Act (hereafter the Director) on or before May 1, 2006. In addition, as of May 2, 2006, the increased rates apply to apprentices whose apprenticeship agreements are registered by the Director after May 1, 2006.

The minimum wage rates for apprentices in the above-mentioned trades are expressed as percentages of the provincial minimum wage and apply based on the level of apprenticeship, as follows:


 

Apprentice of the trade of ironworker 1st Level 2nd Level 3rd Level
Contract registered on or before
May 1, 2006
100% 150% 210%
Above-mentioned contract, as of
May 1, 2007
200% 225% 275%
Contract registered after
May 1, 2006
200% 225% 275%



 

Apprentice of the trade of agricultural equipment technician 1st Level 2nd Level 3rd Level 4th Level
Contract registered on or before
May 1, 2006
120% 140% 160% 180%
Above-mentioned contract, as of
May 1, 2007
150% 170% 190% 200%
Contract registered after
May 1, 2006
150% 170% 190% 200%



 

K. Retail Establishments

In Nova Scotia, retail business establishments must generally be closed to the public on a uniform closing day. Uniform closing days are defined in the Retail Business Uniform Closing Day Act as Sundays,10 Christmas Day, Boxing Day, New Year’s Day, Good Friday, Canada Day, Labour Day and Thanksgiving Day.11 However, many retail businesses are exempted from the obligation to close on a uniform closing day.12

The Retail Business Uniform Closing Day Regulations (N.S. Reg. 98/2006) came into force on June 28, 2006. This Regulation repealed and replaced the Retail Business Uniform Closing Day Regulations 301/86 and the Definitions Regulations 271/92. Among other things, this Regulation repeats the list of retail businesses that was in the Retail Business Uniform Closing Day Regulations 301/86, but also adds vegetable stands whose principal business is selling local produce and retail establishments offering the rental of video cassettes, video discs or similar media and related devices. These businesses are exempt from the requirement to close on a uniform closing day.

Secondly, under a new rule, an establishment that is subdivided into several parts or departments will be considered as one entity. This Regulation provides that where two or more stores are owned, occupied or operated by related persons, they are deemed to be one store if they are in the same building or adjacent or in close proximity to each other. This new rule aims to remove a loophole that allowed grocery stores operating a retail sales area greater than 4,000 square feet to avoid the obligation to close on uniform closing days. However this rule does not apply to a store that was regularly open to the public on Sunday before June 1, 2006. The definition of "related persons" can be found in paragraph 251(2)(b)13 of the Income Tax Act (Canada).14

In addition to these amendments, Nova Scotia also made important changes to its Labour Standards Code under Bill 45, the Labour Standards Code (amendment). Among other things, this new Act provides employees working in retail establishments with the right to refuse to work on a uniform closing day. However, a new regulation adopted on the same day Bill 45 came into force has severely curtailed this right. These recent developments are summarized below.


 

Bill 45, the Labour Standards Code (amended)

The Labour Standards Code (amended) was assented to on July 14, 2006. This Act has amended the Code to provide retail employees with the right to refuse to work on a uniform closing day and to refuse to sign a contract of employment or agreement that requires them to work on a uniform closing day. Moreover, where an employee has agreed to work on uniform closing days, the amended legislation provides that the employee has the right to refuse to work on one of those days if he/she gives the employer at least seven days’ notice or, where the employee receives his/her schedule less than seven days before that day, within two days of receiving the schedule.

In addition, this Act gives to the Governor in Council the power to make regulations listing classes of retail businesses in which employees do not have the right to refuse to work on a uniform closing day.15

Finally, an employer cannot discharge, lay off, suspend, intimidate, penalize or discipline an employee, or discriminate in any other manner against him/her, because the latter has refused to work on a uniform closing day or has refused to sign a contract or agreement that would require him/her to work on one of those days.

This Act also amends the Summary Proceedings Act to allow the Governor in Council to make regulations adding enactments to or deleting enactments from Schedule B of that Act. Schedule B provides a list of provincial statutes under which it is possible to obtain investigative warrants when an offence against one of those statutes has been, is being or will be committed. The Retail Business Uniform Closing Day Act has been included in that list with the coming into force of the Investigative Warrant Enactment Regulations 118/2006 on July 19, 2006.

In addition, this Act amends the Tenancies and Distress for Rent Act (TDRA) to protect businesses from being forced to operate on a uniform closing day by the terms of their lease or other agreement. Moreover, the TDRA now prohibits discrimination or retaliation (e.g., by refusing to renew a lease) against a person who refuses to operate a retail establishment on a Sunday.

The amendments described above came into force by proclamation on July 19, 2006.


 

General Labour Standards Code Regulations (N.S. Reg. 117/2006)

As has already been mentioned, the Labour Standards Code was amended to provide that an employee cannot be required to work in a retail business on a uniform closing day or to sign a contract of employment or agreement that requires him/her to do so. However, General Labour Standards Code Regulations (N.S. Reg. 117/2006) creates two exceptions to that general principle.

First, employees who are subject to a collective agreement are excluded from the right to refuse to work on a uniform closing day. In addition, this Regulation specifies classes of retail businesses in which employees also do not have the statutory right to refuse to work.

It is important to note that the classes of retail businesses listed in this Regulation are the same as the classes of retail businesses exempted from the obligation to close on a uniform closing day.16 Therefore, employees who could have exercised the right to refuse pursuant to the Labour Standards Code (because they work in an establishment that is allowed to open on a uniform closing day) are, in effect, excluded from this right under the General Labour Standards Code Regulations.

This Regulation came into force on July 19, 2006.


 

L. Administration and Enforcement

In British Columbia, some changes were made to the Employment Standards Regulation (ESR) under the Employment Standards Act.

Among other things, the Employment Standards Regulation (ESR) fixes the administrative penalties that an employer is required to pay where the Director of Employment Standards ("Director") determines that he/she contravened a requirement under the Act. The minimum administrative penalties are presently $500 for a first contravention, $2,500 for a second contravention and $10,000 for a third contravention. The higher penalties (i.e., $2,500 and $10,000) only apply where an employer contravenes the same requirement under the Act, at the same location, within three years after the first or second contravention (whichever is applicable).

Regulation 64/2006 has amended the ESR to further specify that the higher penalties do not apply unless: the Director has previously made a determination that the employer contravened the requirement in question for the first (or second) time; and the second (or third) contravention occurred after the date of that determination.

In addition, the ESR has been amended to provide that, with respect to the provisions regarding administrative penalties, an employer’s contravention of a requirement under the Act is deemed to be a single contravention, regardless of the number of employees affected.

As was the case before, the provisions concerning administrative penalties are subject to any right to appeal a determination of the Director under the Act. The Director is also required to give appropriate notice of his/her determination in accordance with the Act.

Regulation 64/2006 came into force on March 31, 2006.

In Ontario, the Good Government Act, 2006 (Bill 190) received Royal Assent on June 22, 2006. Among other things, this Act has amended the Employment Standards Act, 2000 (ESA) to allow the Director of Employment Standards to terminate the assignment of an employment standards officer ("officer") to the investigation of a complaint filed under the Act and assign the investigation to another officer. An officer whose assignment is so terminated does not have any powers or duties with respect to the investigation of the complaint or the discovery during the investigation of any similar potential entitlement of another employee of the employer related to the complaint. The new officer assigned to the investigation can rely on evidence collected by the first officer and any findings of fact made by him/her.

It should be noted that the amendments described above also apply where an officer conducts an inspection of an employer under the ESA.

Finally, this Act has amended the section of the ESA which provides that an officer conducting an investigation or inspection has the power to examine a record or other thing that is relevant to the investigation or inspection. This section now specifies that an officer has the power to examine a record or other thing which he/she thinks may be relevant to his/her investigation or inspection.

These amendments came into force on June 22, 2006.

Furthermore, in Saskatchewan, the Labour Standards Amendment Regulations, 2005 (Reg. 134/2005) under the Labour Standards Act came into force on December 7, 2005.

This Regulation amends the Labour Standards Regulations, 1995 to prescribe the amount of the deposit that an employer is required to make in order to appeal a decision of the Director of Labour Standards regarding the employer’s compliance with the "whistleblower protection" provisions of the Act. Prior to this Regulation, the amount was not prescribed. It is now set at $500.

As was the case before, an employer or corporate director who wishes to appeal a wage assessment must make a deposit equivalent to the amount set out in the wage assessment, up to a maximum of $500.

Finally, in Yukon, pursuant to Order in Council 2005/116 under the Employment Standards Act, the Province of Newfoundland and Labrador was declared a reciprocating jurisdiction and the Director of Labour Standards was designated as the enforcement authority, effective July 11, 2005.17


 

M. Wage-Earner Protection Program (WEPP)

On November 25, 2005, the federal government‘s Act to establish the Wage Earner Protection Program Act, to amend the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act and to make consequential amendments to other Acts (Bill C-55) received Royal Assent.

Once it comes into force, this Act will, among other things, create the legislative basis for a Wage Earner Protection Program (WEPP) that will guarantee workers quick payment of unpaid wages where their employer has become bankrupt or subject to a receivership.

To be eligible to make a claim, a worker will have to be employed by the former employer for more than three months. Wages recoverable will be those earned during the six months immediately before the bankruptcy or the first day on which there was a receiver in relation to the former employer, less any applicable provincial or federal deductions, to a maximum equal to the greater of $3,000 or four times the maximum weekly insurable earnings under the Employment Insurance Act.

The term "wages" will include salaries, commissions, compensation for services rendered, vacation pay, and any other amounts that may be prescribed by regulation, but will not include severance or termination pay. However, severance and termination pay can still be claimed through the regular bankruptcy process and will be treated as an unsecured claim.

The payments will be made out of the Consolidated Revenue Fund. Consequently, a worker will be required to sign over his/her claim against the employer under the Bankruptcy and Insolvency Act to the Crown, up to the amount of payment. The Government will then seek to recover the amounts paid under the WEPP, up to a maximum of $2,000, as a creditor to the former employer in the bankruptcy proceeding.

This Act will also amend the Bankruptcy and Insolvency Act to provide for a limited "super priority" (above secured creditors) for unpaid wage claims over bankrupt employers’ "current assets" (including cash on hand, accounts receivable, and inventory), up to a maximum of $2,000. This "super priority" will either be acted upon by the government in exercising the rights of the employee in the bankruptcy proceeding or by individuals who do not qualify for payment under the WEPP and can pursue wage claims directly in the bankruptcy process. If there are insufficient "current assets" to satisfy the wage claims under the limited "super priority", any amount outstanding, up to the maximum of $2,000, can be claimed through the existing preferred creditor status.

Finally, for any wage claim in excess of $3,000 or other employee’s claim (e.g., severance and termination pay) due, the worker can continue to submit an unsecured claim under the bankruptcy proceedings.

These amendments will come into force on a date to be fixed by the government.

(The summary of this Act is also available on page 5 in Highlights of Major Developments in Labour Legislation 2004-2005).18


 

N. Human Rights in the Workplace

Following a 2005 decision of the Ontario Court of Appeal concerning the equality rights of disabled persons under the Canadian Charter of Rights and Freedoms,19 Regulation 549/05 was issued under the Employment Standards Act, 2000 of Ontario. This Regulation, which came into force on October 28, 2005, made amendments to the Termination and Severance of Employment Regulation (TSER) under the Act.

Subject to certain exceptions, the TSER excludes workers from the sections of the Act regarding minimum notice of termination, termination pay and severance pay if their contract of employment has become impossible to perform or has been frustrated by a fortuitous event or circumstance.

Prior to Regulation 549/05, the exclusion of these workers from the notice of termination and termination pay provisions of the Act was subject to the application of the Human Rights Code. This reference to the Code has been deleted. In addition, the TSER has been amended to provide that the exclusion does not apply where the frustration or impossibility results from the worker’s illness or injury.

This Regulation has also amended the provisions of the TESR excluding such workers from the severance pay provisions of the Act. Before the amendments, the exclusion did not apply where in a case where

  1. The frustration or impossibility resulted from the worker’s illness or injury; and
  2. The Human Rights Code did not prohibit the severance of employment.

The second requirement has been deleted. Therefore, the TESR now provides that the exclusion does not apply where the frustration or impossibility results from the worker’s illness or injury.

As a result of the amendments described above, where the frustration of or impossibility to perform the contract is due to the employee’s illness or injury, the employee is entitled to notice of termination (and/or termination pay) as well as severance pay in accordance with the Act (provided that he/she otherwise meets the eligibility conditions).

Finally, in Newfoundland and Labrador, An Act to amend the Human Rights Code was assented to on May 26, 2006. Among other things, this Act has amended the Code to add "family status" as a prohibited ground of discrimination with respect to employment. "Family status" is defined as the status of being in a parent and child relationship, including that of an adoptive parent and child.

In addition, the time limit to file a complaint under the Code has been extended from six to 12 months.

These amendments came into force on May 26, 2006. (Note: this Act will also bring other changes to the Code in view of ending mandatory retirement; these changes are summarized below).


 

O. Mandatory Retirement

In the period covered by this report, two provinces (Ontario and Newfoundland and Labrador) enacted legislation with a view to ending mandatory retirement at the age of 65 years.

In Ontario, the Ending Mandatory Retirement Statute Law Amendment Act, 2005 (Bill 211) was assented to on December 12, 2005.

Among other things, this Act will amend the definition of "age" provided in the Human Rights Code, to remove the age limit on the prohibition of discrimination in employment. The current definition does not prohibit discrimination in employment because of age, including mandatory retirement, where an individual’s age is 65 years or more. However, the mandatory retirement ages for judges, masters, case management masters and justices of the peace will not be affected by the changes.

Moreover, this Act will amend or repeal provisions of other Acts that require persons to retire at a certain age. These are the Coroners Act, the Election Act, the Health Protection and Promotion Act, the Ombudsman Act, and the Public Service Act. However, a distinction because of age that is required or authorized under the Workplace Safety and Insurance Act, 1997 and its regulations continues to apply.

This Act will come into force one year after Royal Assent (i.e., on December 12, 2006), with the exception of the amendments brought to the Workplace Safety and Insurance Act, 1997, which took effect on Royal Assent.

In Newfoundland and Labrador, An Act to Amend the Human Rights Code (Bill 25) was assented to on May 26, 2006. This Act will amend certain provisions of the Human Rights Code, notably in view of ending mandatory retirement at the age of 65 years.

Currently, the Code prohibits an employer, or person acting on behalf of him/her, from refusing to employ, continuing to employ, or otherwise discriminating against a person because of his/her age, unless he/she is aged 65 or older (among other exemptions). Effective May 26, 2007, this exemption will be repealed. As is presently the case, discrimination in employment on the basis of age will not be prohibited where the person is under the age of 19 years. Moreover, other exceptions in the Code that currently allow discrimination in employment on the basis of age will continue to apply (e.g. where a limitation, specification or preference is based on a bona fide occupational qualification or where termination of employment is due to the terms or conditions of a good-faith retirement or pension plan).

In addition, this Act introduced a number of other amendments to the Code that came into force on May 26, 2006. Among other things, this Act has amended the provision that prohibits an employer, or person acting on its behalf, from using, in hiring or recruitment, an employment agency that discriminates against persons seeking employment on the basis of a prohibited ground (e.g. race, religion or sex). Age (where the person has reached the age of 19 years) and family status have been added to the list of prohibited grounds in this provision.

Finally, the Workplace Health, Safety and Compensation Act has been amended to provide that a distinction on the basis of age that is required or authorized under that Act or its regulations continues to apply, despite the provisions of the Code that prohibit age-based discrimination.


 

P. Pay Equity

In Quebec, An Act to amend the Pay Equity Act (Bill 28) was assented to on May 25, 2006. This Act has brought a number of changes to the Pay Equity Act (PEA) to facilitate its application to the public sector. The most important of these changes are described below.

This Act has replaced the single governmental entity covered by the PEA with two entities: the public service enterprise and the parapublic sector enterprise. The public service enterprise includes government departments and bodies and persons whose employees are appointed in accordance with the Public Service Act (other than the National Assembly). The parapublic sector enterprise includes colleges, school boards and institutions to which the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors applies.

The PEA also provides that an employer and a certified association representing employees of the enterprise can agree to establish one or more separate pay equity plans applicable to those employees in one or more establishments of the enterprise. However, this Act stipulates that in the parapublic sector enterprise there can only be one pay equity plan for all employees represented by certified associations. As was the case before, an employer can apply to the Commission de l’équité salariale established under the PEA (hereafter the Commission) for authorization to establish a separate plan applicable to one or more establishments, if warranted by regional disparities.

In addition, this Act establishes special rules for the representation of employees on pay equity committees where they are not represented by a certified association. Under the PEA, an employer whose enterprise employs 100 or more employees must, in order to enable his/her employees to take part in the establishment of a pay equity plan, set up a pay equity committee on which they are represented. The PEA allows employees who are not represented by a certified association to designate members of the committee (in accordance with the provisions of the PEA). However, with respect to the enterprises mentioned above, a new provision now stipulates that a certified association (or a group of employees’ associations) that represents employees in a job class to which a pay equity plan applies also represents, for the purposes of that plan and until it has been completed, all the employees in that job class who are not covered by a certification. It further provides that the adjustments in compensation and the terms and conditions of payment of compensation adjustments set out in the plan are the only ones applicable to all such employees.

It should be noted that this Act empowers the Commission to authorize another mode of designation of the representatives of employees who are not represented by a certified association.

Accompanying these changes, where a pay equity committee in the public service enterprise has made the postings concerning the results of its pay equity plan, as required under the PEA, prior to May 25, 2006, it must again make the postings. This provision is intended to allow employees who are not covered by a certified association, but who are in a job class to which a pay equity plan applies, to request additional information from, and make observations to, the committee in accordance with the PEA.

This Act came into force on May 25, 2006.


 

Q. Whistleblower Protection

New legislation to protect "whistleblowers" in the public service was introduced in the federal jurisdiction and Manitoba.

In the federal jurisdiction, the Public Servants Disclosure Protection Act (Bill C-11) was assented to by the previous Parliament on November 25, 2005. However, this Act has not been proclaimed into force. After the new Parliament was formed in April 2006, the government tabled Bill C-2, the Federal Accountability Act. This Act, which received third reading on June 21, 2006, will bring a number of significant changes to the Public Servants Disclosure Protection Act. The two Acts are summarized below. (Note: in the summary, the Public Servants Disclosure Protection Act is referred to as "the Act" and the Federal Accountability Act as "Bill C-2").

Purpose of the Act

The purpose of the Public Servants Disclosure Protection Act is to create a mechanism for the disclosure of wrongdoings in the public sector. It also includes provisions to protect "whistleblowers".

Scope of the Act

When it comes into effect, the Act will apply to the federal public sector including agencies, Crown corporations and other public bodies. However, the Canadian Forces, the Canadian Security Intelligence Service and the Communications Security Establishment20 will be excluded from the definition of "public sector" for the purpose of this Act. "Public servant" will be defined as every person employed in the public sector, every member of the Royal Canadian Mounted Police and every chief executive.

The Act will apply with respect to the disclosure of the following wrongdoings in or relating to the public sector: a contravention of a federal or provincial Act or regulation