Bill-22-e.htm

BILL 22

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 The Employment Standards Act, chapter E-7.2 of the Acts of New Brunswick, 1982, is amended by adding after section 38.8 the following:

FOREIGN WORKERS

Registry of employers of foreign workers

38.9( 1) The following definitions apply in this section and in section 38.91.

“foreign worker” means a person who is not a Canadian citizen or permanent resident of Canada, and who is working in or seeking employment in the Province. (travailleur étranger)

“immigration consultant” means a person who, for a fee or compensation, provides immigration services. (consultant en immigration)

“immigration services” means services to assist a foreign worker to immigrate to the Province, including, (services en immigration)

(a) researching and advising on immigration opportunities, laws or processes,

(b) preparing, filing and presenting applications and documents related to immigration,

(d) representing a foreign worker before immigration authorities, and

(e) providing or procuring settlement services.

38.9( 2) An employer who recruits or engages the services of another person to recruit foreign workers for employment with the employer shall register with the Director in accordance with this section.

38.9( 3) Subsection (2) does not apply to the Crown in right of the Province, any Crown corporation or Crown agency.

38.9( 4) An employer shall register by providing to the Director the following information:

(a) with respect to the employer,

( i) the legal name,

( ii) the principal business activity according to the North American Industry Classification System (NAICS) maintained for Canada by Statistics Canada as amended from time to time,

( iii) the place in which the employer is registered, whether in the Province or outside the Province,

( iv) the address, mailing address, phone number, email address and website,

( v) the name of a primary contact person,

( vi) the name of an alternate contact person, and

( vii) the preferred official language of correspondence;

(b) with respect to the position for which a foreign worker is employed or is to be employed,

( i) the type of occupation, according to the National Occupational Classification (NOC) published by Statistics Canada as revised from time to time,

( ii) the location, identified by municipality, rural community or local service district,

( iii) whether an employee in the position is subject to a collective agreement,

( iv) the educational requirements,

( v) the language requirements,

( vi) the wage rate,

( vii) the vacation leave and sick leave provided,

( viii) any benefits not referred to in subparagraph (vi) or (vii),

( ix) the hours of work per day and per week,

( x) the duration of the contract or the period of employment;

( i) the program under which foreign workers are employed or are to be employed,

( ii) whether the employer engages the services of another person to recruit foreign workers,

( iii) whether the employer provides training to foreign workers,

( iv) the number of foreign workers employed or to be employed,

( v) if known, the country of origin of the foreign workers employed or to be employed,

( vi) whether the foreign workers employed or to be employed are already in Canada or in the Province,

( vii) whether the employer pays a foreign worker’s costs of transportation

( A) from their country of origin or elsewhere in Canada to the Province, and

( B) to their country of origin or elsewhere in Canada from the Province,

( viii) whether the employer has employed foreign workers in previous years and, if yes,

( A) the number of years the employer has employed foreign workers, and

( B) the number of foreign workers employed in previous years, if the number of foreign workers employed or to be employed is different from the number employed in previous years,

( ix) whether the employer has attempted to employ Canadian citizens or permanent residents of Canada for the positions filled by foreign workers,

( x) whether the employer has employed any foreign worker who has previously been employed by the employer and, if yes, the total length of the foreign worker’s employment with the employer,

( xi) whether the employer provides accommodations to foreign workers employed or to be employed, and, if yes,

( A) the amount the employer charges the foreign workers for board and lodging,

( B) whether the accommodations are shared or private, and

( C) whether the accommodations are located at the worksite or off the worksite.

38.9( 5) A registration is valid for one calendar year from the date the employer provides the information in subsection (4) and the employer shall provide an update of the information provided each year on or before the anniversary date of the registration.

38.9( 6) For the purposes of administering and enforcing the provisions of this Act with respect to foreign workers or of administering and enforcing provisions of similar legislation of another jurisdiction with respect to foreign workers, the Minister may disclose the information collected under subsection (4) to the following persons:

(a) another Minister of the Crown in right of the Province or his or her servant;

(b) an agent of the Government of Canada or his or her servant;

(d) a government of another province or territory of Canada or of another country or state or territory of that country; or

(e) a law enforcement agency.

38.9( 7) In addition to the purposes prescribed under subsection (6) the Minister may use the information collected under subsection (4) for the following purposes:

(a) for providing employment development programs;

(b) for making labour market supply and demand projections; and

(c) for identifying employers who have foreign worker employees who could be candidates for permanent residency in the Province.

38.9( 8) In addition to the purposes prescribed under subsection (6) the Minister may disclose the information collected under subsection (4) to the Workplace Health, Safety and Compensation Commission for the purpose of enforcing provisions of the Occupational Health and Safety Act with respect to foreign workers.

38.9( 9) If subsection (6), (7) or (8) is inconsistent with or in conflict with a provision of the Right to Information and Protection of Privacy Act, subsection (6), (7) or (8), as the case may be, prevails.

Prohibitions on employers of foreign workers

38.91( 1) No employer shall require a foreign worker to use an immigration consultant as a condition of employment with the employer.

38.91( 2) No employer shall, directly or indirectly, recover from a foreign worker any cost incurred by the employer in recruiting the foreign worker that is not allowed under the program under which the employer has recruited the foreign worker.

38.91( 3) No employer shall reduce the rate of wages, reduce or eliminate any other benefit, or change the terms and conditions of employment of a foreign worker that the employer undertook to provide to the foreign worker when the employer recruited the foreign worker for employment.

38.91( 4) No employer and no person who recruits foreign workers for employment on behalf of an employer shall misrepresent employment opportunities, including misrepresentations with respect to the position to be filled by a foreign worker, the duties of the position, the length of employment, the rate of wages, benefits and other terms and conditions of employment.

38.91( 5) No employer and no person who recruits foreign workers for employment on behalf of an employer shall supply or cause to be supplied false or misleading information to a foreign worker about employer and employee rights and responsibilities.

38.91( 6) No employer and no person who recruits foreign workers for employment on behalf of an employer shall take possession of or retain property that the foreign worker is entitled to possess, including the foreign worker’s passport or work permit.

38.91( 7) No employer that provides accommodations to a foreign worker shall refuse to allow the foreign worker to vacate the employer-provided accommodations for other accommodations.

38.91( 8) No employer and no person who recruits foreign workers for employment on behalf of an employer shall threaten a foreign worker with deportation or another action for which there is no lawful cause.

2 The Act is amended by adding after section 44.024 the following:

CRITICAL ILLNESS LEAVE

Critical illness leave

44.025( 1) The following definitions apply in this section.

“critically ill child” means a person who is under 18 years of age on the day on which the qualified medical practitioner certifies that the person’s baseline state of health has significantly changed and whose life is at risk as a result of an illness or injury. (enfant gravement malade)

“parent” means a person who, in law, is the parent of, has the custody of or is the guardian of a child or a person with whom a child is placed for the purposes of adoption. (parent)

“qualified medical practitioner” means a person who is entitled to practise medicine under the laws of a jurisdiction in which care or treatment of a critically ill child is provided. (médecin qualifié)

“week” means the period between midnight on Saturday and midnight on the immediately following Saturday. (semaine)

44.025( 2) Subject to subsections (3) to (7), on the request of an employee who is the parent of a critically ill child, an employer shall grant the employee a leave of absence without pay of up to 37 weeks to provide care or support to that child if a qualified medical practitioner has issued a certificate that

(a) states that the child is a critically ill child and requires the care or support of one or more of his or her parents, and

(b) sets out the period during which the child requires that care or support.

44.025( 3) The leave of absence may only be taken during the period

(a) that starts with the first day of the week in which either of the following occurs:

( i) the day on which the first certificate in respect of the child that meets the requirements of subsection (2) is issued; or

( ii) if the leave is commenced before the certificate is issued, the date from which the qualified medical practitioner certifies that the child is a critically ill child; and

(b) that ends with the last day of the week in which either of the following first occurs:

( i) the child dies; or

( ii) the expiration of 37 weeks following the first day of the week referred to in paragraph (a).

44.025( 4) If both parents of a critically ill child are employees of the same employer, the aggregate amount of leave that may be taken under subsection (2) for the care or support of the same critically ill child shall not exceed 37 weeks and may

(a) be taken wholly by one of the employees, or

(b) be shared by the employees.

44.025( 5) An employee intending to take a leave of absence under subsection (2) shall advise the employer in writing as soon as possible of the employee’s intention to take the leave, the anticipated commencement date of the leave, the anticipated duration of the leave and shall provide the employer with the certificate referred to in subsection (2).

44.025( 6) If circumstances beyond the control of the employee require a change in the duration of the leave of absence, the employee shall advise the employer in writing of the change as soon as possible.

44.025( 7) An employer is not required to extend an employee’s leave of absence beyond the date that would result in the employee’s total period of leave of absence exceeding 37 weeks from the commencement date of that leave.

44.025( 8) When an employee reports for work on the expiration of the period of leave granted under subsection (2), the employer shall permit the employee to resume work in the position the employee held immediately before the commencement of the leave or an equivalent position with no decrease in pay and with no loss of benefits accrued up to the commencement of the leave.

DEATH OR DISAPPEARANCE LEAVE

Death or disappearance leave

44.026( 1) The following definitions apply in this section.

“child” means a person who is under 18 years of age. (enfant)

“crime” means an offence under the Criminal Code (Canada). (crime)

“parent” means a person who, in law, is the parent of, has the custody of or is the guardian of a child or a person with whom a child is placed for the purposes of adoption. (parent)

“week” means the period between midnight on Saturday and midnight on the immediately following Saturday. (semaine)

44.026( 2) Subject to subsections (5) and (6), on the request of an employee who is the parent of a child who has died and it is probable, considering the circumstances, that the child died as a result of a crime, an employer shall grant the employee a leave of absence without pay of up to 37 weeks.

44.026( 3) Subject to subsections (5) and (6), on the request of an employee who is the parent of a child who has disappeared and it is probable, considering the circumstances, that the child disappeared as a result of a crime, an employer shall grant the employee a leave of absence without pay of up to 37 weeks.

44.026( 4) If both parents are employees of the same employer, each is entitled to the leave of absence under this section.

44.026( 5) An employee is not entitled to a leave of absence under this section if the employee is charged with the crime.

44.026( 6) Subject to subsections (7) to (9), a leave of absence under this section may only be taken during the period

(a) that starts with the day on which the death or disappearance, as the case may be, is discovered, and

(b) that ends 37 weeks after the day on which the death or the disappearance, as the case may be, is discovered.

44.026( 7) If a child who has disappeared is found alive during the 37-week period, the leave of absence ends 14 days after the day on which the child is found.

44.026( 8) If a child who has disappeared is found dead during the 37-week period, and it is probable, considering the circumstances, that the child died as a result of a crime, the leave of absence ends 37 weeks after the day on which the child is found.

44.026( 9) A leave of absence under this section ends 14 days after the day that, considering the circumstances, it is no longer probable that the child disappeared or died, as the case may be, as a result of a crime, unless the employer and employee agree to an earlier date to return to work.

44.026( 10) An employee intending to take a leave of absence under this section shall advise the employer in writing as soon as possible of the employee’s intention to take the leave, the anticipated commencement date of the leave and the anticipated duration of the leave.

44.026( 11) An employer may require an employee to provide documentation that is reasonable in the circumstances in support of the employee’s entitlement to a leave of absence under this section.

44.026( 12) If circumstances beyond the control of the employee require a change in the duration of the leave of absence, the employee shall advise the employer in writing of the change as soon as possible.

44.026( 13) Subject to subsection (8), an employer is not required to extend an employee’s leave of absence beyond the date that would result in the employee’s total period of leave of absence exceeding 37 weeks from the commencement date of that leave.

44.026( 14) When an employee reports for work on the expiration of the period of leave of absence granted under this section, the employer shall permit the employee to resume work in the position the employee held immediately before the commencement of the leave or an equivalent position with no decrease in pay and with no loss of benefits accrued up to the commencement of the leave.

3 Section 1 of this Act comes into force on a day to be fixed by proclamation.