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 Amendingthe 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 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 StandardsAct 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’sRegulation 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’sRegulation 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
EntertainmentRegulation 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‘sAct 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
The frustration or
impossibility resulted from the worker’s illness
or injury; and
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
