Bill 46 - An Act to Amend the Employment Standards Act

BILL 46

An Act to Amend the Employment Standards Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Subsection 8(3) of the Employment Standards Act, chapter E-7.2 of the Acts of New Brunswick, 1982, is amended by striking out “ten days” and substituting “14 days”.

2 Section 36 of the Act is amended

(a) by adding after subsection (1) the following:

36( 1.1) An employer may only provide a statement referred to in subsection (1) to an employee electronically if the employer provides to the employee, through the employee’s place of employment, confidential access to the electronic statement.

(b) by repealing subsection (2) and substituting the following:

36( 2) An employer shall pay all pay

( a) by cash,

( b) by cheque or bill of exchange, payable on demand, drawn on a bank, credit union, trust company or other institution insured under the Canada Deposit Insurance Corporation Act (Canada), or

( c) by deposit into an account of the employee in a bank, credit union, trust company or other institution of the employee’s choice that is insured under the Canada Deposit Insurance Corporation Act (Canada).

3 Subsection 38.1(1) of the Act is repealed and the following is substituted:

38.1( 1) The Director, having knowledge or reason to believe that an employer is insolvent or is on the eve of insolvency, may, if satisfied that pay due and owing an employee of the employer remains and is likely to remain unpaid, issue a certificate in the form prescribed by regulation stating the amount of money that appears to the Director to be due and owing by the employer to the employee.

4 Subsection 44.031(18) of the Act is amended by striking out “ten days” and substituting “14 days”.

5 Section 62 of the Act is amended by adding after subsection (1) the following:

62( 1.1) The Director may cause an investigation to be undertaken in subsection (1) by referring the complaint to an Employment Standards Officer under section 64.1.

6 The Act is amended by adding after section 64 the following:

Notice of non-compliance

64.1( 1) In this section, “prescribed provision” means a provision of this Act or the regulations prescribed by regulation for the purposes of this section. (disposition prescrite)

64.1( 2) At any point after a complaint is made involving the contravention of a prescribed provision, the Director may refer the complaint to an Employment Standards Officer.

64.1( 3) An Employment Standards Officer may issue a notice of non-compliance to a person with respect to the contravention of a prescribed provision

( a) after an investigation of a complaint referred under subsection (2); or

( b) after an investigation that is not the result of a complaint.

64.1( 4) A person who is issued a notice of non-compliance shall comply with the prescribed provision set out in the notice within 30 days after receiving the notice and if the person fails to comply before the expiry of that time, the Director may impose an administrative penalty on the person in accordance with section 64.2.

64.1( 5) A notice of non-compliance issued under paragraph (3)(a) may only be in respect of contraventions occurring within 12 months preceding the date of the complaint.

64.1( 6) A notice of non-compliance issued under paragraph (3)(b) may only be in respect of contraventions occurring within 11 months preceding the issuance of the notice.

64.1( 7) A notice of non-compliance shall contain the information prescribed by regulation.

64.1( 8) A notice of non-compliance is sufficiently served on a person if it is served or delivered in accordance with section 86.

64.1( 9) A person who is issued a notice of non-compliance shall not be prosecuted for an offence under this Act in respect of the same incident that gave rise to the issuance of the notice.

64.1( 10) A person who is prosecuted for an offence under this Act shall not be issued a notice of non-compliance in respect of the same incident that gave rise to the prosecution.

64.1( 11) The Director shall not issue an order under subsection 65(1) in respect of the same incident that gave rise to the issuance of a notice of non-compliance until the 30-day period for complying with the notice has elapsed and the person against whom the notice has been issued has not complied.

Administrative penalties

64.2( 1) If a person fails to comply with a notice of non-compliance within the 30-day period referred to in subsection 64.1(4),

( a) the Director may make an order under subsection 65(1) imposing an administrative penalty and including the amount of penalty in the stated amount payable under the order, or

( b) if the Director is not satisfied on reasonable grounds that there has been a contravention of the provision of this Act or the regulations set out in the notice, or for any other reason, the Director may decide

( i) not to make an order under section 65, and

( ii) to set aside the notice of non-compliance.

64.2( 2) The amount of administrative penalty payable for a failing to comply with a notice of non-compliance shall be prescribed by regulation, which amount shall not be less than $150 and shall not exceed $900.

64.2( 3) For the purpose of determining the amount of an administrative penalty, the Director may treat a contravention relating to more than one person

( a) as a separate contravention in relation to each affected person; or

( b) as one contravention in respect of a group of affected persons.

64.2( 4) An administrative penalty is payable to the Minister of Finance.

64.2( 5) A person who pays an administrative penalty shall be deemed to have contravened the provision of this Act or the regulations in respect of which the notice of non-compliance was issued.

7 Paragraph 65(1)(c) of the Act is amended by adding after subparagraph (iv) the following:

( iv.1) an administrative penalty;

8 The Act is amended by adding after section 65 the following:

Corporate directors’ liability

65.1( 1) This section does not apply with respect to corporations that are operated on a not-for-profit basis, including corporations incorporated under section 16 or 18 of the Companies Act and corporations that have been incorporated in another jurisdiction with objects that are similar to the objects of corporations incorporated under section 16 or 18 of the Companies Act.

65.1( 2) Despite any other Act and subject to subsection (4), a person who is or was a director of a corporation is jointly and severally liable with the corporation to an employee or former employee of the corporation for

( a) up to six months of wages owing to an employee or former employee that were earned or became due and payable while the person was a director, and

( b) up to 12 months of vacation pay or pay in lieu of vacation owing to an employee or former employee that accrued or became due and payable while the person was a director.

65.1( 3) If the Director makes an order requiring an employer that is a corporation to pay a stated amount under subparagraph 65(1)(c)(i), (ii) or (iv.1), the Director may also order a director or former director of the corporation who is liable under subsection (2) to pay all or some of that stated amount.

65.1( 4) No order may be made under subparagraph 65(1)(c)(i), (ii) or (iv.1) against a former director of a corporation who is liable under subsection (2) more than two years after the date the former director ceases to be a director of the corporation.

65.1( 5) If a director or former director of a corporation complies with an order to pay under subparagraph 65(1)(c)(i), (ii) or (iv.1), nothing in this Act affects any right the director or former director has to bring an action against the corporation or against one or more directors or former directors of the corporation for contribution or indemnification for the amount paid.

9 Section 67 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

Referral of matter to the Board

67( 1) A person against whom an order is made by the Director may make a written request to the Director to refer the matter to the Board, within 14 days after the order is served on him or her, and the request shall be accompanied by a deposit in accordance with section 67.1, if applicable.

(b) by adding after subsection (1) the following:

67( 1.1) A complainant whose complaint has been acted on and dismissed by the Director may make a written request to the Director to refer the matter to the Board, within 14 days after being advised in writing of the dismissal.

67( 1.2) Within ten days after receiving a request under subsection (1) or (1.1), the Director shall

( a) file with the Board a copy of the order and the complaint, if any,

( b) forward to the Board the deposit, if any, and

( c) request that the Board arrange a hearing of the matter.

(d) by adding after subsection (2) the following:

67( 2.1) If a person makes a request to refer a matter to the Board after the time limit set out in subsection (1) or (1.1), the person shall provide reasons for the delay on the prescribed form, and the Director shall forward the form to the Board.

67( 2.2) The Board shall examine any reasons forwarded under subsection (2.1) before determining whether to hold a hearing on the matter that has been referred to it.

10 The Act is amended by adding after section 67 the following:

Deposit required for referral

67.1( 1) A person requesting a referral to the Board with respect to an order made under paragraph 65(1)(c) shall provide a deposit at the time of making the request, in an amount equal to the amount payable by the person under the order, up to a maximum of $2,000.

67.1( 2) Before the Board hears the matter, a person who has provided a deposit may acknowledge being indebted to an employee in the amount stated in the order and authorize the Board to apply the deposit to the amount owing to the employee to whom the person is indebted, and if there remains a surplus of funds after the deposit is applied, the Board shall apply the surplus to the amount of administrative penalty owing to the Minister of Finance stated in the order, if applicable.

67.1( 3) An acknowledgement and authorization referred to in subsection (2) shall be made in a form provided by the Director.

67.1( 4) If after hearing and considering the matter the Board finds that a person who has provided a deposit is indebted to an employee for unpaid wages, pay or other payments, the Board shall apply the deposit to the amount owing to the employee, and if funds remain after the deposit is applied to that amount, the Board shall apply the remaining funds to the amount of administrative penalty owing to the Minister of Finance, if applicable, and after this the Board shall return any surplus funds to the person who has provided the deposit.

67.1( 5) If after hearing and considering the matter the Board finds that a person who has provided a deposit is not indebted to an employee for unpaid wages, pay or other payments, the Board shall return the deposited funds to the person.

67.1( 6) A deposit under subsection (1) is payable to the Board and shall be held by the Board until disposed of by the Board under subsection (2), (4) or (5).

67.1( 7) A deposit applied to the amount owing under an order discharges the person who has provided the deposit only to the extent of the amount applied.

11 Subsection 68(1) of the Act is repealed and the following is substituted:

68( 1) Subject to subsection 67(2.2) and section 67.1, if a matter is referred to the Board under section 8 or 44.031 or subsection 67(1) or (1.1), the Board shall hear the matter as soon as it can conveniently be arranged.

12 Section 85 of the Act is amended by adding after paragraph (c) the following:

( c.1) prescribing provisions of this Act or the regulations for which a notice of non-compliance may be issued in respect of a contravention;

( c.2) respecting the establishment of administrative penalties;

( c.3) prescribing the amount payable for an administrative penalty in respect of a contravention, which may vary according to whether it is a first, second or third contravention;

( c.4) prescribing the period of time without a contravention of the same provision of this Act or the regulations after which a subsequent contravention is deemed to be a first contravention;

( c.5) prescribing the information to be contained in a notice of non-compliance;

( c.6) respecting the payment of an administrative penalty;

13 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.