Bill 112 - An Act to Amend the Employment Standards Act

BILL 112

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 Section 1 of the English version of Employment Standards Act, chapter E-7.2 of the Acts of New Brunswick, 1982, is amended

(a) in the definition “employer” by striking out “his” and substituting “the person’s”;

(b) in the definition “period of employment” by striking out “his” and substituting “their”.

2 Subsection 8(1) of the English version of the Act is amended in the portion following paragraph (c) by striking out “his” and substituting “the Director’s”.

3 Subsection 11(2) of the English version of the Act is amended by striking out “his” and substituting “the employer’s”.

4 Section 12 of the English version of the Act is repealed and the following is substituted:

Right of underpaid employee to sue employer

12 An employee to whom an employer has paid wages at a rate less than the minimum rate established by the Lieutenant-Governor in Council in the industry, business, trade or occupation in which the employee is employed is, in addition to any other remedy provided under this Act, entitled to sue for and recover as an ordinary debt from their employer the difference between the wages the employee has actually received from their employer and the wages the employee would have received from their employer if the employee had been paid in accordance with the minimum rate.

5 Subsection 13(2) of the English version of the Act is amended by striking out “his” and substituting “the”.

6 Paragraph 16.1(1)(a) of the English version of the Act is amended by striking out “his or her” and substituting “the”.

7 Section 18 of the English version of the Act is amended

(a) in subsection (1)

( i) in paragraph (a) by striking out “his” and substituting “their”;

( ii) in paragraph (c) by striking out “his” and substituting “their”;

(b) in subsection (2) by striking out “his” and substituting “their”;

(d) in subsection (4)

( i) in the portion preceding paragraph (a) by striking out “his” and substituting “the employee’s”;

( ii) in subsection (a) by striking out “his” wherever it appears and substituting “their”;

(e) by repealing paragraph (5)(b) and substituting the following:

(b) pay the employee for each hour worked on a public holiday an amount not less than their regular wages and give to the employee a holiday on the employee’s first working day immediately following their next vacation or on a working day agreed upon and pay the employee their regular wages for that day.

8 Section 19 of the English version of the Act is amended

(a) in subsection (1) by striking out “his” wherever it appears and substituting “their”;

(b) in subsection (1.1) by striking out “he” and substituting “the employee”.

9 Section 20 of the English version of the Act is amended by striking out “his” wherever it appears and substituting “the”.

10 Section 21 of the English version of the Act is repealed and the following is substituted:

Employee’s pay for public holiday where daily wages vary

21( 1) If the wages of an employee vary from day to day, the pay for a public holiday on which the employee has not worked shall be at least equivalent to the employee’s average daily earnings exclusive of overtime for the days on which the employee worked during the 30 calendar days immediately preceding the public holiday.

21( 2) Notwithstanding subsection (1), a route salesperson’s pay for a public holiday on which they have not worked shall not increase their earnings for the week of the holiday above their average weekly wages for the preceding four weeks.

11 Subsection 30(2) of the English version of the Act is amended by striking out “he” and substituting “the employer”.

12 Section 34 of the English version of the Act is amended

(a) in subsection (1) by striking out “he” and substituting “the employee”;

(b) in subsection (2) by striking out “he” and substituting “the employer”.

13 Subsection 35(1) of the English version of the Act is amended by striking out “his” and substituting “its”.

14 Section 37 of the English version of the Act is amended by striking out “he” and substituting “the employee”.

15 Section 37.1 of the English version of the Act is amended

(a) in subsection (1) in the portion preceding paragraph (a) by striking out “he” and substituting “the employer”;

(b) by repealing subsection (4) and substituting the following:

37.1( 4) If an employer’s violation of this section results in an employee receiving a lower amount of pay than the employee would have received if the employer had not committed the violation, the Director may make any order that the Director considers appropriate and just in the circumstances, including an order that the employer compensate the employee for the loss in pay.

16 Subsection 38.9(6) of the English version of the Act is amended

(a) in paragraph (a) by striking out “his or her” and substituting “their”;

(b) in paragraph (b) by striking out “his or her” and substituting “their”.

17 Subsection 41(1) of the English version of the Act is amended

(a) in the portion preceding paragraph (a) by striking out “he” and substituting “the Director”;

(b) in paragraph (b) by striking out “his” and substituting “the person’s”.

18 Subsection 43(1) of the English version of the Act is amended by striking out “in his or her opinion, occur” and substituting “in the opinion of the medical practitioner, nurse practitioner or midwife, as the case may be, occur”.

19 Paragraph 44.025(2)(a) of the English version of the Act is amended by striking out “his or her” and substituting “their”.

20 Paragraph 44.0251(2)(a) of the English version of the Act is amended by striking out “his or her” and substituting “their”.

21 The heading “LEAVE FOR RESERVISTS” preceding section 44.031 of the Act is amended by striking out “RESERVISTS” and substituting “MEMBERS OF THE RESERVES”.

22 The heading “Leave for reservists” preceding section 44.031 of the Act is amended by striking out “reservists” and substituting “members of the Reserves”.

23 Section 44.031 of the Act is amended

(a) in subsection (1)

( i) by repealing the definition “annual training”;

( ii) by repealing the definition “service” and substituting the following:

“service” includes a period of (service)

(a) deployment to a Canadian Forces operation, inside or outside Canada, or engagement, inside or outside Canada, in a pre-deployment or post-deployment activity required by the Canadian Forces in connection with such an operation,

(b) deployment to address a national emergency,

(c) training that members of the Reserves are ordered to take under paragraph 33(2)(a) of the National Defence Act (Canada),

(d) military skills training,

(e) time spent in travel from or to a member of the Reserve’s residence in relation to an activity referred to in paragraph (a), (b), (c) or (d),

(f) rest in relation to an activity referred to in paragraph (a), (b), (c) or (d), and

(g) time spent in treatment, recovery or rehabilitation in respect of a physical or mental health problem that results from an activity referred to in paragraph (a), (b), (c) or (d).

( iii) by adding the following definitions in alphabetical order:

“Canadian Forces” means Canadian Forces within the meaning of section 14 of the National Defence Act (Canada). (Forces canadiennes)

“national emergency” means national emergency within the meaning of section 3 of the Emergencies Act (Canada). (crise nationale)

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

44.031( 2) An employer shall not dismiss, suspend or lay off an employee or refuse to employ a person for the sole reason that the employee or person is a member of the Reserves.

44.031( 3) An employee who is a member of the Reserves who has been in the employ of the employer for a continuous period of at least three months and who is selected for service is entitled to and shall be granted a leave of absence without pay by the employer for the purpose of that service.

(d) by adding after subsection (3) the following:

44.031( 3.1) An employee who is a member of the Reserves may take up to a total of 24 months of leave of absence within any 60-month period.

44.031( 3.2) Subsection (3.1) does not apply to a leave of absence taken as a result of a national emergency.

(e) by repealing subsection (4);

(f) by repealing subsection (5) and substituting the following:

44.031( 5) An employee who intends to take a leave of absence under subsection (3) shall give written notice to the employer of the employee’s intention

(a) at least four weeks before the anticipated commencement date of the leave, or

(b) if the employee receives notice that they are selected for service less than four weeks before the commencement date of that service, as soon as the circumstances permit after receiving the notice.

(g) by repealing subsection (7) and substituting the following:

44.031( 7) An employer may require the employee to provide the employer with a certificate from an official with the Reserves stating

(a) that the employee is a member of the Reserves and has been selected for service, and

(b) if possible, the expected start and end dates for the period of service.

(h) in subsection (10) by striking out “18 months” and substituting “24 months”;

(i) in subsection (12) by striking out “two weeks” and substituting “four weeks”;

(j) in subsection (16) of the English version by striking out “he or she” and substituting “the Director”.

24 Subsection 44.04(3) of the English version of the Act is amended in the portion preceding paragraph (a) by striking out “his or her” and substituting “their”.

25 Subsection 45(3) of the English version of the Act is amended by striking out “his or her”.

26 Subsection 57(3) of the English version of the Act is repealed and the following is substituted:

57( 3) Any action in the performance of a duty or exercise of an authority by a person appointed under subsection (1) before the publication required by subsection (2) is not invalid by reason only of the absence of publication.

27 Paragraph 58(1)(b) of the English version of the Act is amended in the portion preceding subparagraph (i) by striking out “he” and substituting “the Director or Employment Standards Officer, as the case may be,”.

28 Paragraph 59(f) of the English version of the Act is amended by striking out “his”.

29 Subsection 60(4) of the English version of the Act is amended by striking out “his” and substituting “the employee’s”.

30 Section 61 of the English version of the Act is amended

(a) in paragraph (1)(b) by striking out “he has” and substituting “they have”;

(b) in subsection (2) by striking out “he” and substituting “the Director”.

31 Section 62 of the English version of the Act is amended

(a) in subsection (1) by striking out “he” and substituting “the Director”;

(b) in subsection (2) by striking out “he is”;

32 Subsection 63(1) of the English version of the Act is amended by striking out “he” and “his” and substituting “the Director” and “the”, respectively.

33 Section 64 of the English version of the Act is amended

(a) in subsection (4) by striking out “he” and substituting “the mediator”;

(b) in subsection (5) by striking out “his” and substituting “the”.

34 Section 65 of the English version of the Act is amended

(a) in subsection (1)

( i) in the portion preceding paragraph (a) by striking out “he” and substituting “the Director”;

( ii) in paragraph (d) by striking out “his” and substituting “the employee’s”;

(b) by repealing subsection (3) and substituting the following:

65( 3) In an order made under subsection (1), the Director shall specify the provision of this Act or the regulations or of any order made under subsection 64(3) that, in the Director’s opinion, has not been complied with and shall advise the person against whom the order is made of their right to require the Director to refer the matter to the Board.

35 Subsection 65.1(5) of English version of the Act is amended by striking out “he or she” and substituting “they”.

36 Section 66 of the English version of the Act is amended

(a) in paragraph (a) by striking out “he” and substituting “the Director”;

(b) in the portion following paragraph (b) by striking out “he” and “him of his” and substituting “the Director” and “the complainant of their”, respectively.

37 Subsection 67(1) of the English version of the Act is amended by striking out “him or her” and substituting “the person”.

38 Section 68 of the English version of the Act is amended

(a) in paragraph (3)(e) by striking out “his” and “he” and substituting “the party’s” and “the party”, respectively;

(b) in subsection (4) by striking out “his” and “he” and substituting “the person’s” and “the person”, respectively.

39 Subsection 69(1) of the English version of the Act is amended by striking out “he” and substituting “the Director”.

40 Subsection 72(1) of the English version of the Act is amended by striking out “he” and substituting “the Director” and by striking out “him” wherever it appears and substituting “the person”.

41 Subsection 75(3) of the English version of the Act is amended

(a) in paragraph (a) by striking out “him” and substituting “the named person”;

(b) in paragraph (c) by striking out “he has” and substituting “they have”.

42 Subsection 78(5) of the English version of the Act is amended by striking out “he” and substituting “the Minister”.

43 Section 80 of the English version of the Act is amended

(a) in paragraph (a) by striking out “he” and substituting “the Employment Standards Officer”;

(b) in paragraph (d) by striking out “his” and substituting “the Employment Standards Officer’s”.

44 Paragraph 82(a) of the English version of the Act is amended by striking out “he” and substituting “the person”.

45 Section 84 of the English version of the Act is repealed and the following is substituted:

Officers and directors of a corporation

84 When an offence under this Act is committed by a corporation, each officer and director of the corporation commits the offence unless they can establish that the offence was committed without their knowledge or consent, was not acquiesced in by them, and that the offence occurred despite the exercise of reasonable diligence by them in the performance of their responsibilities to the corporation.