Acts and Regulations

E-7.2 - Employment Standards Act

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Document at 31 December 2006
CHAPTER E-7.2
Employment Standards Act
Assented to June 17, 1982
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
I
DEFINITIONS
Definitions
1In this Act
“agricultural services” means services associated with the tilling of the soil, the planting and harvesting of crops for food production and the raising of animals for food, and includes services associated with a related activity of an employer if the primary activity of the employer is the business of tilling the soil, of planting and harvesting crops for food production or of raising animals for food, and the primary activity and the related activity can reasonably be treated as part of a single agricultural operation;(services agricoles)
“Board” means the Labour and Employment Board established under the Labour and Employment Board Act;(Commission)
“close family relationship” means the relationship between persons who are married to one another, between parents and their children, between siblings and between grandparents and their grandchildren, and includes a relationship between persons who, though not married to one another and whether or not a blood relationship exists, demonstrate an intention to extend to one another the mutual affection and support normally associated with those relationships first mentioned;(liens familiaux étroits)
“collective agreement” means an agreement in writing between(convention collective)
(a) an employer or an employer’s organization, and
(b) a trade union or a council of trade unions that represents employees of the employer or employees of members of the employers’ organization, on the other hand,
containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers’ organization, the trade union, the council of trade unions or the employees;
“construction industry” means the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipelines, tunnels, bridges, canals or other works at the site thereof;(industrie de la construction)
“Director” means the person appointed under subsection 45(2);(Directeur)
“dismissal” means the termination of the employment relationship for cause at the direction of the employer;(licenciement)
“domestic services” Repealed: 1984, c.42, s.1
“employee” means a person who performs work for or supplies services to an employer for wages, but does not include an independent contractor;(salarié)
“employer” means a person, firm, corporation, agent, manager, representative, contractor or sub-contractor having control or direction of or being responsible, directly or indirectly, for the employment of one or more persons and includes employer as defined in the Public Service Labour Relations Act, but does not include a person having control or direction of or being responsible, directly or indirectly, for the employment of persons in or about his private home;(employeur)
“establishment” means a place or places at or in which all or any part of a business or undertaking of an employer is or has been carried on;(établissement)
“forest industry” means all operations in or incidental to the production or manufacture of articles produced from wood;(industrie forestière)
“industrial undertaking” includes an undertaking in which articles are manufactured, altered, cleaned, repaired, finished, prepared for sale or demolished, or in which materials are transformed, including shipbuilding and the generation, transformation, transmission and distribution of electricity or motive power of any kind, mines, quarries, and other works for the extraction of minerals from the earth, and undertakings in the construction industry;(entreprise industrielle)
“layoff” means a temporary interruption of the employment relationship at the direction of the employer because of a lack of work;(mise à pied)
“Minister” means the Minister of Post-Secondary Education and Training;(Ministre)
“non-bargaining employee” means an employee whose terms and conditions of employment are not the subject of a collective agreement;(salarié non syndiqué)
“nurse practitioner” means a person who is registered under the laws of the Province as authorized to practice as a nurse practitioner;(infirmière praticienne)
“overtime” means the time worked by an employee in excess of the hours of work established by section 9 or section 15;(heures supplémentaires)
“pay” means wages, public holiday pay, pay in lieu of public holidays, vacation pay and pay in lieu of vacation paid or due to an employee, benefits, initiation fees and union dues checked off by the employer, but does not include deductions from wages that may lawfully be made by an employer;(rémunération)
“period of employment” means the period of time from the last hiring of an employee by an employer to the termination of his employment, and includes any period of layoff or suspension of less than twelve consecutive months;(période d’emploi)
“place of employment” means any building, structure, premises, water, land or other place or thing in or upon which one or more persons are or has been employed for wages;(lieu d’emploi)
“public holiday” means New Year’s Day, Good Friday, Canada Day, New Brunswick Day, Labour Day, Remembrance Day and Christmas Day, and includes any day substituted for one of those days under this Act; (jour férié)
“regulation” means a regulation made by the Lieutenant-Governor in Council under this Act;(règlement)
“suspension” means a temporary interruption of the employment relationship other than a layoff, at the direction of the employer;(suspension)
“termination” means the unilateral severance of the employment relationship at the direction of the employer;(cessation)
“Tribunal” Repealed: 1994, c.52, s.1
“wages” includes salary, commissions and compensation in any form for work or services measured by time, piece or otherwise, but does not include public holiday pay, pay in lieu of public holidays, vacation pay, pay in lieu of vacation, gratuities or honoraria.(salaire)
1983, c.10, s.2; 1983, c.30, s.8; 1984, c.42, s.1; 1986, c.8, s.37; 1988, c.59, s.1; 1992, c.2, s.19; 1994, c.52, s.1; 1998, c.41, s.50; 2000, c.26, s.106; 2002, c.23, s.1; 2003, c.4, s.1; 2004, c.10, s.1; 2006, c.16, s.60
II
APPLICATION
Application
2Except where exempted under this Act or the regulations, all employers and employees whose relations are subject to the legislative authority of the Legislature are bound by this Act, notwithstanding that the work or services may be performed in whole or in part outside New Brunswick.
Crown bound by Act
3This Act binds the Crown.
Act prevails over collective agreement
4(1)Subject to subsection (2), this Act applies notwithstanding any agreement to the contrary between an employer and an employee.
4(2)Where there is a conflict between a provision of this Act and a provision of a collective agreement this Act prevails except where the provision of the collective agreement expressly states that a benefit, privilege, right or obligation was agreed to in lieu of the application of a provision of this Act.
1984, c.42, s.2
Employment contracts for agricultural services exempted
5Except with respect to sections 39, 40 and 41, dealing with the employment of persons under the age of sixteen years, this Act does not apply to employment contracts for the provision of agricultural services between employees and employers who employ three or fewer employees over a substantial period of the year, exclusive of employees who are in a close family relationship with the employer.
1984, c.42, s.3
Non-application of Act to persons exempted under sections 7 and 8
6This Act does not apply to any person exempted under section 7 or 8 to the extent of the exemption granted thereunder.
Persons exempted by regulation
7The Lieutenant-Governor in Council may make regulations exempting in whole or in part from the provisions of this Act
(a) persons employed in specified occupations;
(b) persons employed in any specified class of work; and
(c) persons employing employees referred to in paragraphs (a) and (b).
Application for exemption by employer
8(1)An employer may apply to the Director
(a) in response to a complaint filed under this Act;
(b) in response to a proceeding initiated by the Director under this Act; or
(c) at any other time;
to be exempted from any provision of this Act, and the Director may grant an exemption if the employer can show to his satisfaction that, in addition to any other requirement that may be established in this Act,
(d) the employer suffers a special hardship in complying with the provision that is not suffered by other employers; and
(e) the employee receives other benefits or advantages that can be viewed as reasonable compensation for the sacrifice of the benefit, advantage, privilege or protection offered by the provision in respect of which the exemption is sought;
or that the employment contract in question was entered into voluntarily and without force or coercion between persons having a close family relationship.
8(2)In lieu of deciding an application made under subsection (1), the Director may refer the matter to the Board.
8(3)Any person affected by a decision of the Director with respect to an application made under subsection (1) may request the Director in writing, within ten days after notice of the decision, to refer the matter to the Board.
8(4)A matter referred to the Board under subsection (2) or (3) shall be disposed of in accordance with section 68.
1984, c.42, s.4; 1994, c.52, s.1
III
EMPLOYMENT STANDARDS
MINIMUM WAGE
Minimum wage regulations
9(1)The Lieutenant-Governor in Council may by regulation
(a) apply a minimum wage to all employees or to any category of employees in any industry, business, trade or occupation;
(b) fix the minimum wage upon an hourly, daily, weekly, monthly or other basis;
(c) fix a maximum number of hours of work for which the minimum wage shall be paid;
(d) fix the minimum wage payable for time worked in excess of the maximum number of hours of work established;
(e) fix a special minimum rate of wages for employees in training or in a learning situation, other than apprentices covered by the Apprenticeship and Occupational Certification Act, and limit the number of such employees to whom the special rate may be payable by any employer;
(f) specify when and under what conditions deductions may be made from the minimum wage, and what notification the employee should be given thereof prior to employment;
(g) fix the maximum amount, if any, that may be deducted from the minimum wage where the employer furnishes to the employee board, lodging, uniforms, laundry or other services, and prescribe the notification required to be given to the employee prior to employment;
(h) prescribe the periods in respect of which wages shall be paid, whether daily, weekly, monthly or for any other period, and fix the day upon which the wages for any period shall be paid and the manner in which they shall be paid; and
(i) fix a minimum wage applicable only in the part or parts of the Province designated in the regulation.
9(2)A regulation made under subsection (1) may be general or particular in its application.
9(3)Every employer, unless exempted under this Act or the regulations, shall comply with the provisions of a regulation made under subsection (1).
1984, c.42, s.5; 1986, c.32, s.1; 1987, c.27, s.22
Minimum Wage Board
10(1)The Lieutenant-Governor in Council shall not make a regulation under section 9 until such time as the matter in respect of which the regulation is to be made has been considered by the Minimum Wage Board and the Minimum Wage Board has rendered its advice on the matter.
10(2)The Minimum Wage Board, or any member of the Minimum Wage Board when authorized by it, may, on its own initiative or at the direction of the Lieutenant-Governor in Council, conduct such investigations and hold such conferences and hearings as it considers necessary for the purpose of rendering advice to the Lieutenant-Governor in Council on the matters referred to in section 9.
10(3)In advising the Lieutenant-Governor in Council, the Minimum Wage Board shall take into account the social and economic effects of minimum wage rates in the province and shall consider, among other matters,
(a) any cost of living increase since any previous order or regulation, with respect to the cost to an employee of purchasing the necessities of life, including but not limited to housing, food, clothing, transportation and health care and supplies; and
(b) economic conditions within the province and the concept of a reasonable return on private investment.
1984, c.42, s.6; 1994, c.52, s.1
Posting of applicable regulations
11(1)Repealed: 1983, c.8, s.11
11(2)An employer shall post and keep posted in a conspicuous place in his establishment a copy of all applicable minimum wage regulations.
11(3)Additional notice of any regulation made under section 9 shall be given by employers to employees in such manner as the Lieutenant-Governor in Council may by regulation direct.
1983, c.8, s.11
Right of underpaid employee to sue employer
12An 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 he is employed is, in addition to any other remedy provided under this Act, entitled to sue for and recover as an ordinary debt from his employer the difference between the wages he has actually received from his employer and the wages he would have received from his employer if he had been paid in accordance with the minimum rate.
Tips and gratuities
13(1)Subject to subsection (3), tips and gratuities are the property of the employee to whom or for whom they are given, and shall not be withheld by the employer or treated by the employer as wages.
13(2)Where a surcharge or other charge is imposed by the employer in lieu of the payment of tips or gratuities, all amounts collected in respect thereof shall be deemed to be the property of his employees to be distributed to the employees in accordance with the terms and conditions of employment not later than the time of the next pay; and such amounts shall not be withheld by the employer or treated by the employer as wages.
13(3)An employer may adopt a practice whereby tips and gratuities are pooled, at the option of the employee, for the benefit of some or all of the employees but such practice does not give the employer a proprietary interest in the tips and gratuities so pooled.
1984, c.42, s.7
HOURS OF WORK
No limitation on numbers of hours of work
14Subject to sections 17, 39 and 41 and to any other Act, there is no limit on the number of hours an employee may work during any daily, weekly or monthly period.
1984, c.42, s.8
Maximum number of hours of work at minimum wage rate
15(1)The Lieutenant-Governor in Council may by regulation prescribe the maximum number of hours an employer may require an employee to work during a daily, weekly or monthly period at the minimum wage rate, and may prescribe the employees or categories of employees in any industry, business, trade or occupation to which the prescribed maximum number of hours will apply.
15(2)A regulation made under this section shall be posted in like manner as a regulation made under section 9.
Overtime rate of pay
16Where a regulation is in effect under subsection 15(1), an employee who works for an employer in excess of the prescribed maximum hours of work shall be paid by the employer at a rate of not less than one and one-half times the minimum wage rate.
MINIMUM REPORTING WAGE
2003, c.4, s.2
Minimum reporting wage
16.1(1)An employer shall pay a non-bargaining employee for not less than three hours of work at the minimum wage rate or for the hours the employee works at the employee’s regular wage rate, whichever is greater, if the employee
(a) reports for work as required by his or her employer,
(b) has a regular wage rate of less than twice the minimum wage rate, and
(c) is regularly employed for more than three consecutive hours in a shift.
16.1(2)If an employee to whom subsection (1) applies has already worked the maximum hours of work prescribed under paragraph 9(1)(c), the employer shall pay the employee for not less than three hours of work at one and one-half times the minimum wage rate or for the hours the employee works at the employee’s regular wage rate, whichever is greater.
16.1(3)An employee shall be deemed to have worked any hours for which the employee is paid under subsection (1) or (2).
2003, c.4, s.2
WEEKLY REST PERIOD
1984, c.42, s.9
Requirement of weekly rest period
17(1)Where an employer employs an employee other than
(a) an employee who, in the opinion of the Director, is required to cope with an emergency; or
(b) an employee who is not usually employed for more than three hours in any one day;
the employer shall give to the employee a weekly rest period of at least twenty-four consecutive hours, to be taken, if possible, through Sunday or, if the Director approves, to be accumulated and taken later, either part at a time or all together.
17(2)Nothing in this section authorizes any work to be done on Sunday that is now prohibited by law.
1984, c.42, s.10; 1988, c.59, s.2
Right of refusal to work on a Sunday
17.1(1)In this section
“retail business” means a retail business as defined in the Days of Rest Act.
17.1(2)Subject to subsections (3) and (4), an employee may refuse to work on a Sunday, whether or not the Sunday is also a prescribed day of rest, if the work is in a retail business or part of a retail business that is exempted from the application of the Days of Rest Act
(a) solely under
(i) a by-law made under paragraph 11(1)(e.1) of the Municipalities Act, or
(ii) a permit issued under section 27.7 of the Municipalities Act,
(b) solely under subsection 7.1(1) of that Act, or
(c) under exemptions referred to in both paragraphs (a) and (b) but under no other provision of the Days of Rest Act.
17.1(3)An employee may, under subsection (2), refuse to work only on a Sunday on which the exemption or exemptions referred to in that subsection apply.
17.1(4)An employee who is permitted to refuse to work on a Sunday under subsection (2) shall give the employer verbal or written notice of refusal at least fourteen days before any Sunday on which the employee refuses to work.
17.1(4.1)An employee may, at one time, give at least fourteen days notice under subsection (4) in relation to one Sunday, more than one Sunday, all Sundays or any combination of Sundays.
17.1(5)Notwithstanding anything in this Act, no employer or person acting on behalf of an employer shall dismiss, suspend, lay off, penalize, discipline or discriminate against an employee because
(a) the employee has refused or attempted to refuse to work on a Sunday, if the employee was permitted to do so under subsection (2), or
(b) the employee seeks to enforce the employee’s rights under this section.
1997, c.29, s.1; 2004, c.24, s.2
PUBLIC HOLIDAYS
Public holidays
18(1)This section does not apply to an employee who
(a) has been in the employ of his present employer for fewer than ninety days during the previous twelve calendar months immediately preceding a public holiday;
(b) Repealed: 1988, c.59, s.3
(c) without reasonable cause fails to work his scheduled regular day of work preceding or following a public holiday;
(d) has agreed to work on a public holiday and, without reasonable cause, fails to report for and perform the work;
(e) is employed under an arrangement whereby the employee elects to work when requested to do so.
18(2)Subject to subsections (3), (4) and (5), an employer shall give to an employee a holiday on each public holiday and pay to the employee his regular wages for each public holiday.
18(3)Where a public holiday falls on a working day for an employee, an employer may with the agreement of the employee or his agent substitute another working day for the public holiday, which day shall not be later than the next vacation of the employee, and the day so substituted shall be deemed to be the public holiday.
18(4)Where a public holiday falls on a non-working day for an employee or in his vacation an employer shall
(a) with the agreement of the employee or his agent pay the employee his regular wages for the public holiday; or
(b) designate a working day that is not later than the next vacation of the employee, and the day so designated shall be deemed to be the public holiday.
18(5)Notwithstanding subsection (3), where an employee is employed in a hotel, motel, tourist resort, restaurant, tavern or any continuous operation, and the employee is required because of the nature of the operation to work, and works on a public holiday, the employer shall
(a) pay the employee in accordance with subsection 19(1); or
(b) pay the employee for each hour worked on a public holiday an amount not less than his regular wages and give to the employee a holiday on his first working day immediately following his next vacation or on a working day agreed upon and pay him his regular wages for that day.
18(6)For the purposes of subsection (5) “continuous operation” means that part of an establishment, industry or service in which in each seven day period operations once commenced normally continue day and night without cessation until the completion of the regularly scheduled operations for that period.
1984, c.42, s.11; 1988, c.59, s.3
Rate of wages for work on public holiday
19(1)Subject to subsection 18(5), where an employee works on a public holiday the employer shall pay to the employee for time worked not less than one and one-half times his regular rate of wages and, where the employee is entitled to the holiday with pay, his regular wages in addition thereto.
19(1.1)In subsection (1) “regular wages” means the wages the employee would have received had he not worked on the public holiday.
19(2)Where an employee works on a public holiday, the hours that the employee works on the public holiday shall not be taken into consideration in calculating any overtime pay to which the employee is entitled for the work week in which the public holiday occurs.
1984, c.42, s.12; 1988, c.59, s.4
Cessation of employment before the day to be substituted for public holiday
20Where the employment of an employee ceases before the day that is substituted, designated or given for the public holiday under subsection 18(3) or paragraphs 18(4)(b) or 18(5)(b), the employer shall pay to his employee, in addition to any other payment to which the employee is entitled upon the ceasing of employment, his regular wages for that day.
1984, c.42, s.13
Employee’s pay for public holiday where daily wages vary
21(1)Where the wages of an employee vary from day to day, his pay for a public holiday on which he has not worked shall be at least equivalent to his average daily earnings exclusive of overtime for the days on which he worked during the thirty calendar days immediately preceding the public holiday.
21(2)Notwithstanding subsection (1), a route salesman’s pay for a public holiday on which he has not worked shall not increase his earnings for the week of the holiday above his average weekly wages for the preceding four weeks.
1984, c.42, s.14
Vacation and public holiday benefits
22(1)An employee is not entitled to a vacation with pay or a public holiday with pay under this Act if under a collective agreement or contract of employment the employee receives vacation and holiday benefits which together equal or exceed the combined vacation and public holiday benefits provided under this Act.
22(2)For the purpose of subsection (1) a payment of three per cent of wages is equivalent to the public holiday benefits as prescribed by this Act.
22(3)Notwithstanding subsection (1), an employer shall pay to an employee who works on a public holiday for time worked not less than one and one-half times the employee’s regular rate of wages in accordance with subsection 19(1).
1988, c.59, s.5
Collective agreement in force after July 16, 1976
23Where any class of employers or employees is covered by a collective agreement that became effective after July 16, 1976 and provides for a minimum of seven paid holidays, including New Brunswick Day, that class of employers and employees are exempt from the application of sections 18 to 21.
1984, c.42, s.15; 2004, c.10, s.2
VACATIONS
Annual vacation
24(1)An employer, not later than four months after the vacation pay year ends, shall give to an employee who has less than eight years of continuous employment with the employer a vacation that as a minimum is equal to two regular work weeks or one day for each calendar month during the vacation pay year in which the employee worked, whichever is less.
24(1.1)An employer, not later than four months after the vacation pay year ends, shall give to an employee who has eight or more years of continuous employment with the employer a vacation that as a minimum is equal to three regular work weeks or one and one-quarter days for each calendar month during the vacation pay year in which the employee worked, whichever is less.
24(2)For the purposes of this section and sections 25 and 26, “vacation pay year” means the period from the first day of July to the last day of June then following.
24(3)Repealed: 1988, c.59, s.6
24(4)Repealed: 1988, c.59, s.6
1988, c.59, s.6; 2000, c.55, s.1
Qualifying employees
25(1)If an employee qualifies for a vacation under section 24, the employer shall
(a) at least one week in advance, notify the employee of the date the vacation is to begin, and
(b) at least one day before the vacation begins,
(i) if subsection 24(1) applies, pay the employee an amount equal to four per cent of the employee’s wages for the vacation pay year, or
(ii) if subsection 24(1.1) applies, pay the employee an amount equal to six per cent of the employee’s wages for the vacation pay year.
25(2)Repealed: 1988, c.59, s.7
1986, c.32, s.2; 1988, c.59, s.7; 2000, c.55, s.2
Cessation of employment
26(1)If an employee’s employment with an employer ceases before the end of the vacation pay year, the employer shall pay the employee, not later than at the same time as the employee’s final pay is given,
(a) an amount equal to four per cent of the employee’s wages for the vacation pay year if the employee has less than eight years of continuous employment with the employer, or
(b) an amount equal to six per cent of the employee’s wages for the vacation pay year if the employee has eight or more years of continuous employment with the employer.
26(2)Repealed: 1988, c.59, s.8
1988, c.59, s.8; 2000, c.55, s.3; 2003, c.4, s.3
Other vacation provisions
27Where provisions for a vacation established under any other Act or by any agreement, contract of service or custom are as favourable to an employee in respect of a vacation pay year as the requirements of this Act, the provisions so established prevail over this Act.
UNJUST DISMISSAL AND RELATED
UNFAIR EMPLOYER ACTION
Unjust dismissal and related unfair employer action
28Notwithstanding anything in this Act an employer shall not dismiss, suspend, lay off, penalize, discipline or discriminate against an employee if the reason therefor is related in any way to
(a) the application by an employee for any leave to which the employee is entitled under this Act;
(b) the making of a complaint or the giving of information or evidence by the employee against the employer with respect to any matter covered by this Act; or
(c) the giving of information or evidence by the employee against the employer with respect to the alleged violation of any Provincial or federal Act or regulation by the employer while carrying on the employer’s business;
or if the dismissal, suspension, layoff, penalty, discipline or discrimination constitutes in any way an attempt by the employer to evade any responsibility imposed upon him under this Act or any other Provincial or federal Act or regulation or to prevent or inhibit an employee from taking advantage of any right or benefit granted to him under this Act.
1988, c.59, s.9
NOTICE OF TERMINATION
Application of sections 30 and 31
29Sections 30 and 31 apply only where employees are not covered by a collective agreement.
Notice of termination or lay off
30(1)Except where cause for dismissal exists, and subject to subsection (3) and to sections 31 and 32, an employer shall not terminate or lay off an employee without having given at least
(a) two weeks notice in writing, where the employee has been employed by the employer for a continuous period of employment of six months or more but less than five years; and
(b) four weeks notice in writing, where the employee has been employed by the employer for a continuous period of employment of five years or more.
30(2)Where an employer dismisses an employee for cause he shall do so in writing, setting out the reasons for such action, and, subject to section 31, unless this section is complied with no dismissal without notice is valid notwithstanding that cause for such action exists.
30(3)Where an employee is given notice of termination or layoff by the employer but continues to work for the employer for a period of one month or more beyond the end of the notice period, the notice is extinguished and the employer shall only terminate or lay off the employee after giving a new notice in accordance with subsection (1).
1984, c.42, s.16; 1988, c.59, s.10
Termination or lay off without notice
31(1)Notwithstanding section 30, an employer may lay off an employee without notice
(a) where there is a lack of work, due to any reason unforeseen by the employer at the time notice would otherwise have been given, for such period as the lack of work continues due to that reason; or
(b) for any reason, for a period of up to six days.
31(2)Notwithstanding section 30, an employer may terminate or lay off without notice an employee who has refused reasonable alternate employment offered by the employer as an alternative to being terminated or laid off.
31(3)Section 30 does not apply where
(a) the termination of the employment relationship is due to the completion by the employee of a definite assignment that the employee was hired to perform over a period not exceeding twelve months, whether or not the exact period was stated in the employment contract;
(b) an employee has completed a term of employment that was fixed in the employment contract, unless the employee is employed for a period of three months beyond that period;
(c) an employee retires under a bona fide retirement plan;
(d) the employee is doing construction work in the construction industry;
(e) the termination or layoff results from the normal seasonal reduction, closure or suspension of an operation; or
(f) the termination of the employment relationship arises under such other circumstances as are prescribed by regulation.
1984, c.42, s.17; 1986, c.32, s.3
Notice of termination or lay off of more than ten employees
32(1)No employer shall terminate or lay off in a four week period more than ten employees if they represent at least twenty-five per cent of the employees of the employer in a four week period without first having given to the Minister, the employees affected by the termination or layoff and, where the employees are covered by a collective agreement, to the employees’ bargaining agent, at least six weeks notice of the termination or layoff.
32(1.1)Where the length of notice of termination or layoff which is required by a collective agreement exceeds the length of notice required by subsection (1), the employer shall give to the Minister, the employees affected by the termination or layoff and the employees’ bargaining agent, the notice required by the collective agreement.
32(2)A copy of the notice required to be given under subsection (1) or subsection (1.1) shall be posted so as to be available for the information of all employees.
32(3)Subsection (1) does not apply where
(a) the termination of the employment relationship is due to the completion by the employee of a definite assignment that the employee was hired to perform over a period not exceeding twelve months, whether or not the exact period was stated in the employment contract;
(b) an employee retires under a bona fide retirement plan;
(c) the employee is doing construction work in the construction industry;
(d) the termination or layoff results from the normal seasonal reduction, closure or suspension of an operation; or
(e) the termination of the employment relationship arises under such other circumstances as are prescribed by regulation.
32(4)Nothing in this section shall defeat a right that any employee may have under a collective agreement.
1983, c.30, s.8; 1984, c.42, s.18; 1986, c.8, s.37; 1988, c.59, s.11
Lay off without notice
33Notwithstanding section 32 an employer may lay off an employee without notice being given
(a) where there is a lack of work, due to any reason unforeseen by the employer at the time the notice would otherwise have been given, for such period as the lack of work continues due to that reason; or
(b) for any reason, for a period of up to six days.
Termination or lay off without notice or payment in lieu of notice
34(1)Notwithstanding sections 30 and 32 an employer may terminate or layoff an employee without notice upon payment in lieu of notice of an amount equal to the pay the employee would have earned during the notice period provided under section 30 as though he were entitled to notice under that section.
34(2)Where an employer does not comply with either section 30 or subsection (1) he is liable to the employee for the pay the employee would have earned during the notice period.
1984, c.42, s.19; 1988, c.59, s.12
PROMPT PAYMENT OF WAGES
Payment of wages
35(1)Subject to subsection (4), an employer shall pay his employees at such times that the interval between pays is of not more than sixteen days.
35(2)An employer shall, when paying an employee, include all wages earned up to and including a day that is not more than seven calendar days prior to the time fixed for payment.
35(3)An employee who is absent at the time fixed for payment or who, for any other reason, is not paid at that time, is entitled to be paid on demand any time thereafter during regular hours of work.
35(4)An employer is not required to comply with subsections (1) and (2) if the payments are otherwise made in accordance with the terms of a practice existing at the time this section comes into force or under the terms of a collective agreement or in accordance with the provisions of an order of the Director with respect thereto granted on application.
1984, c.42, s.20; 1988, c.59, s.13
Statement of pay, method of payment
36(1)An employer shall give to each employee, not later than the time the employee is paid in accordance with subsection 35(1), a statement showing
(a) the dates of the pay period;
(b) the gross pay of the employee for the pay period;
(c) the particulars of each deduction and the amount thereof; and
(d) the net pay after deductions have been taken out.
36(2)An employer shall pay all pay
(a) in lawful currency of Canada;
(b) by cheque or bill of exchange drawn upon a chartered bank, credit union, trust company or other institution insured under the Canada Deposit Insurance Corporation Act and honoured and paid by such bank, credit union, trust company or other institution; or
(c) by deposit in an account of the employee in a chartered bank, credit union, trust company or other institution insured under the Canada Deposit Insurance Corporation Act.
1984, c.42, s.21; 1988, c.59, s.14
Payment of outstanding pay to former employee
37Where an employee ceases to be employed by an employer the employer shall pay to the employee all outstanding pay not later than at the time the employee would have been paid had he continued to be employed, and in no case shall the employer delay payment of outstanding pay or other outstanding benefits beyond twenty-one days after the last day the employee was employed.
EQUAL PAY FOR EQUAL WORK
Equal pay for equal work
37.1(1)No employer shall pay an employee of one sex at a different rate of pay from that which he pays to an employee of the other sex for work that
(a) is performed in the same establishment,
(b) is substantially the same in nature,
(c) requires substantially the same skill, effort and responsibility, and
(d) is performed under similar working conditions
except where the payment is made pursuant to
(e) a seniority system,
(f) a merit system,
(g) a system that measures earnings by quantity or quality of production, or
(h) any other system or practice that is not otherwise unlawful.
37.1(2)No employer shall reduce the rate of pay of an employee in order to comply with subsection (1).
37.1(3)No person shall attempt to influence an employer to violate subsection (1).
37.1(4)Where an employer’s violation of this section results in an employee receiving a lower amount of pay than he would have received if the employer had not committed the violation, the Director may make any order that he considers appropriate and just in the circumstances, including an order that the employer compensate the employee for the loss in pay.
1986, c.32, s.4
WAGE PROTECTION
Wage protection
38Any assignment of wages or any portion thereof made after this section comes into force and used as security for the payment of a debt is invalid.
Employees’ lien
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 to the extent of
(a) all pay due and owing the employee for the two weeks immediately preceding the issuance of the certificate,
(b) seventy-five per cent of the pay due and owing the employee for the third and fourth weeks immediately preceding the issuance of the certificate,
(c) fifty per cent of the pay due and owing the employee for the fifth and sixth weeks immediately preceding the issuance of the certificate, and
(d) twenty-five per cent of the pay due and owing the employee for the seventh and eighth weeks immediately preceding the issuance of the certificate.
38.1(2)A certificate referred to in subsection (1) may be issued in relation to more than one employee and more than one certificate may be issued in relation to the same employer.
38.1(3)A certificate referred to in subsection (1) is, in the absence of evidence to the contrary, proof that the amount of money stated in the certificate was due and owing by the employer to the employee in respect of whom the certificate was issued when the certificate was issued.
38.1(4)The Director may cause a certificate referred to in subsection (1) to be filed with the registrar of deeds for the county or counties in which the employer named in the certificate owns real property or carries on business.
38.1(5)The registrar of deeds shall file the certificate describing it as an “Employee Lien” and shall index the certificate in the appropriate registration index.
38.1(6)A certificate referred to in subsection (1) when filed with the registrar of deeds constitutes a lien in favour of the employee in respect of whom the certificate was issued for the amount of money stated in the certificate or as amended by an amending certificate referred to in subsection 38.5(1) against all the real property of the employer situate in the county or counties in which the certificate is filed.
38.1(6.1)The Director may register a notice of the certificate referred to in subsection (1) in the Personal Property Registry in accordance with the regulations under the Personal Property Security Act.
38.1(6.2)A notice of a certificate when registered in the Personal Property Registry constitutes a lien in favour of the employee in respect of whom the certificate was issued against all the personal property of the employer for the amount of money stated in the certificate or, where applicable, for the amount as amended by an amending certificate referred to in subsection 38.5(1).
38.1(7)Notwithstanding any other Act including, but not limited to, the Mechanics’ Lien Act, the Real Property Tax Act, the Real Property Transfer Tax Act, the Revenue Administration Act, the Wage-Earners Protection Act, the Warehouseman’s Lien Act, the Woodsmen’s Lien Act and the Workers’ Compensation Act, a lien referred to in subsection (6) or (6.2) has, subject to subsection (8), priority over every security interest, claim, lien, privilege or encumbrance of any person including any security interest, claim, lien, privilege or encumbrance of the Crown in right of the Province, a Crown corporation or a Crown agency.
38.1(8)Where more than one lien referred to in subsection (6) or in subsection (6.2) has been constituted with respect to the same employer the liens rank on an equal footing.
38.1(9)Pay due and owing under a lien referred to in subsection (6) or in subsection (6.2) shall be paid to the Director on behalf of the employee in respect of whom the lien was constituted.
38.1(10)Where a certificate referred to in subsection (1) is filed under subsection (4) and a notice of that certificate is registered under subsection (6.1), the total amount secured by the liens so constituted against both the real and personal property of the employer shall not exceed the amount of money stated in the certificate or, where applicable, the amount as amended by an amending certificate referred to in subsection 38.5(1).
1988, c.59, s.15; 1994, c.50, s.2; 2003, c.4, s.4
Filing of certificate in Court of Queen’s Bench
38.2(1)The Director may obtain from the registrar of deeds a certified copy of a certificate filed under subsection 38.1(4) and may cause the certified copy to be filed in The Court of Queen’s Bench of New Brunswick, and the certified copy shall be entered and recorded in the Court, and when so entered and recorded becomes a judgment of the Court and may be enforced by the Director as a judgment obtained in the Court against the employer named in the certified copy for a debt of the amount of money stated in the certified copy.
38.2(1.1)The Director may obtain from the Personal Property Registry a verification statement showing that a notice of the certificate has been registered under subsection 38.1(6.1) and may cause the certificate or a certified copy of it to be filed in The Court of Queen’s Bench of New Brunswick, and the certificate or certified copy shall be entered and recorded in the Court, and when so entered and recorded becomes a judgment of the Court and may be enforced by the Director as a judgment obtained in the Court against the employer named in the certificate for a debt of the amount of money stated in the certificate.
38.2(2)Where a certified copy of a certificate has been filed in accordance with subsection (1), any person may challenge the certified copy in interpleader proceedings or on application to set aside any execution thereunder as provided for by the rules of The Court of Queen’s Bench of New Brunswick and The Court of Appeal of New Brunswick.
38.2(3)Where a certificate has been filed in accordance with subsection (1.1), any person may challenge the certificate in interpleader proceedings or on application to set aside any execution under it as provided for by the rules of The Court of Queen’s Bench of New Brunswick and The Court of Appeal of New Brunswick.
1988, c.59, s.15; 2003, c.4, s.5
Payment by mortgagee or judgment creditor
38.3Any mortgagee, judgment creditor, secured party or other person having any claim, lien, privilege or encumbrance upon or against any real or personal property to which is attached a lien under subsection 38.1(6) or (6.2)
(a) may pay to the Director the amount secured by the lien or liens,
(b) may add the amount to the original obligation secured, and
(c) has the same enforcement rights and remedies with respect to the amount added to the obligation secured as are available with respect to the original obligation secured.
1988, c.59, s.15; 1994, c.50, s.2
Renewal statement
38.4(1)A lien referred to in subsection 38.1(6) ceases to be valid after the expiration of five years from the date of the filing of the certificate under subsection 38.1(4) unless before the expiration of that period the Director causes a renewal statement in the form prescribed by regulation to be filed with the registrar of deeds for the county or counties in which the certificate is filed.
38.4(2)The registrar of deeds shall file the renewal statement and shall index it in the appropriate registration index.
38.4(3)A lien renewed in accordance with subsection (1) shall not be further renewed and ceases to be valid after the expiration of five years from the date of the filing of the renewal statement.
38.4(4)A registration under subsection 38.1(6.1) is effective for the period of years, not exceeding ten years, that is specified in the registration.
38.4(5)A registration that is effected for a period of less than ten years may be renewed, at any time before the registration expires, for the period of years specified in the registration by which the renewal is effected, but the registration shall not have an aggregate registration life of more than ten years.
1988, c.59, s.15; 1994, c.50, s.2; 2003, c.4, s.6
Amending certificate
38.5(1)Where the Director is satisfied that the amount of money stated in a certificate referred to in subsection 38.1(1) was incorrectly stated, the Director shall cause an amending certificate in the form prescribed by regulation to be filed with the registrar of deeds for the county or counties in which the certificate is filed.
38.5(2)The amending certificate shall be filed by the registrar of deeds and shall be indexed in the appropriate registration index and a notation of the amending certificate shall be made opposite the entry of the certificate or the renewal statement to which the amending certificate refers.
38.5(3)Section 38.2 applies mutatis mutandis in relation to an amending certificate filed under subsection (1).
38.5(4)When an amending certificate referred to in subsection (1) is filed under that subsection, the Director shall amend the registration in the Personal Property Registry of the notice of the certificate to which the amending certificate relates.
1988, c.59, s.15; 1994, c.50, s.2; 2003, c.4, s.7
Certificate of discharge or partial discharge
38.6(1)Where the amount of money stated in a certificate referred to in subsection 38.1(1) or as amended by an amending certificate referred to in subsection 38.5(1) has been paid to the Director, the Director
(a) shall cause the lien referred to in subsection 38.1(6) to be discharged by filing with the registrar of deeds a certificate of discharge in the form prescribed by regulation, and
(b) shall cause the lien referred to in subsection 38.1(6.2) to be discharged by discharging the registration in the Personal Property Registry of the notice of the certificate to which the discharge relates.
38.6(2)Where an amount of money less than the amount of money stated in a certificate referred to in subsection 38.1(1) or, where applicable, as amended by an amending certificate referred to in subsection 38.5(1) has been paid to the Director, the Director shall
(a) cause a certificate of partial discharge in the form prescribed by regulation to be filed with the registrar of deeds,
(b) amend the registration in the Personal Property Registry of the notice of the certificate to which the payment relates to disclose the amended amount, and
(c) where the certificate was issued in relation to more than one employee, distribute pro rata to the employees in respect of whom the lien or liens was or were constituted the amount of money paid.
38.6(3)In a case within paragraph (1)(a) or (2)(a) the certificate of discharge or partial discharge, as the case may be, shall be filed by the registrar of deeds and shall be indexed in the appropriate registration index and a notation of the certificate of discharge or partial discharge shall be made by the registrar opposite the entry of the certificate, the amending certificate or the renewal statement to which the certificate of discharge or partial discharge refers.
1988, c.59, s.15; 1994, c.50, s.2; 2003, c.4, s.8
Application of sections 38.1 to 38.6
38.7Nothing contained in sections 38.1 to 38.6 shall be construed so as to entitle an employee to receive payment for more than the total amount of pay due and owing the employee by the employer.
1988, c.59, s.15
Filing of documents
38.8Notwithstanding the provisions of the Registry Act, any document referred to in sections 38.1 to 38.6 that is required to be filed by the registrar of deeds shall be filed by the registrar of deeds in the manner provided in sections 38.1 to 38.6 and when so filed has the same effect as if registered under the Registry Act.
1988, c.59, s.15; 1994, c.50, s.2
CHILDREN
Restrictions on employment of persons under 16 years of age
39Subject to section 41, no employer shall employ a person who is under the age of sixteen years
(a) in employment that is or is likely to be unwholesome or harmful to the person’s health, welfare or moral or physical development;
(b) for more than six hours in any day;
(c) for more than three hours on any school day;
(d) on any day for a period which, when added to the time required for attendance at school on that day, would require the person to spend more than a total of eight hours attending school and working;
(e) between the hour of ten o’clock in the afternoon of any day and the hour of six o’clock in the forenoon of the following day.
1984, c.42, s.22
Restrictions on employment of persons under 14 years of age
40Subject to section 41, no employer shall employ a person who is under fourteen years of age
(a) in any industrial undertaking;
(b) in the forest industry;
(c) in the construction industry;
(d) in a garage or automotive service station;
(e) in a hotel or restaurant;
(f) in a theatre, dance hall or shooting gallery;
(g) as an elevator operator;
(h) in any location or occupation prescribed by regulation.
Restrictions on employment of children
41(1)Notwithstanding paragraphs 39(b) to (e) and section 40, the Director may, on application, issue a permit allowing the employment of a person where he is satisfied on reasonable grounds that the employment of the person
(a) will not be in contravention of paragraph 39(a) or of the Occupational Health and Safety Act;
(b) will not prejudice the person’s attendance at school or his capacity to benefit from instruction at school; and
(c) has been assented to by the person’s guardian.
41(2)If the Director refuses to issue a permit any interested person may, in the manner set out in section 67, require the Minister to refer the matter to the Board.
41(3)Sections 39 and 40 are subject to the provisions of the Occupational Health and Safety Act respecting the employment of persons under sixteen years of age.
1983, c.O-0.2, s.53; 1984, c.42, s.23; 1986, c.32, s.5; 1994, c.52, s.1
MATERNITY
Prohibition against dismissal, suspension or lay-off of employee due to pregnancy
42An employer shall not dismiss, suspend or lay off an employee who is pregnant, or refuse to employ a person who is pregnant, for reasons arising from her pregnancy alone.
1984, c.42, s.24
Leave of absence without pay
43(1)Subject to subsection (2), an employer shall at any time from a day eleven weeks before the specified date of delivery to the day of actual delivery, upon the request of a pregnant employee and upon receipt of a certificate by a medical practitioner or nurse practitioner stating that the employee is pregnant and specifying the date upon which delivery will, in his or her opinion, occur, grant the employee leave of absence without pay of seventeen weeks or such shorter period as the employee requests.
43(2)An employee intending to take leave of absence under this section shall
(a) advise her employer four months before the projected date of delivery or as soon as her pregnancy is confirmed, whichever is the later, of her intent to take leave and the anticipated commencement date in the absence of an emergency; and
(b) in the absence of an emergency, give two weeks’ notice to the employer of the commencement date of the leave.
43(3)Subject to subsection (4), leave of absence under subsection (1) may be taken during the period of time the employee stipulates in her request as long as the anticipated date of delivery falls within the stipulated period.
43(4)An employer may, where no alternative employment is available, before or after commencement of the period referred to in subsection (1), require the employee to commence a leave of absence at the time when the duties of her position cannot reasonably be performed by a pregnant woman or the performance of the work of the employee is materially affected by the pregnancy.
43(5)Repealed: 1991, c.52, s.1
43(6)Repealed: 1991, c.52, s.1
43(7)Repealed: 1991, c.52, s.1
1984, c.42, s.24; 1988, c.59, s.16; 1991, c.52, s.1; 2002, c.23, s.1
Return to work
44(1)Where an employee reports for work upon the expiration of the period of leave granted under section 43, 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.
44(2)For the purposes of subsection (1), alternative employment referred to in subsection 43(4) shall not be considered as the position the employee held immediately before the commencement of the leave.
1984, c.42, s.24; 1988, c.59, s.17
ADOPTION
Repealed: 1991, c.52, s.2
Repealed
44.01Repealed: 1991, c.52, s.3
1988, c.59, s.18; 1991, c.52, s.3
CHILD CARE
1991, c.52, s.4
Child care
44.02(1)In this section
“child” means a person under the age of nineteen.
44.02(2)Subject to subsections (3), (4) and (8), an employer shall, upon the request of an employee,
(a) who is the natural parent of a newborn or unborn child, or
(b) who is adopting or has adopted a child,
grant the employee a leave of absence without pay of thirty-seven consecutive weeks or such shorter period as the employee requests so as to enable the employee to care for the child.
44.02(3)An employee intending to take a leave of absence under paragraph (2)(a) shall
(a) provide the employer with a certificate of a medical practitioner or nurse practitioner specifying the date upon which delivery will, in the medical practitioner’s or nurse practitioner’s opinion, occur or the date upon which the birth has occurred, and
(b) in the absence of an emergency, give four weeks written notice to the employer of the commencement date and duration of the leave.
44.02(4)An employee intending to take a leave of absence under paragraph (2)(b) shall
(a) on being approved in accordance with the Family Services Act as a prospective adopting parent or, in the case of a private adoption, four months before, or in the event of an emergency as soon as possible before, the anticipated day on which the child will be placed with the employee for adoption, give written notice to the employer of the employee’s intention to take leave,
(b) provide the employer with proof that a child has been or will be placed with the employee for the purposes of adoption, and
(c) notify the employer of the commencement date and duration of the leave on being made aware of the date on which the child will be placed with the employee for adoption or at the time the child is placed with the employee for adoption, whichever occurs first.
44.02(5)Repealed: 2000, c.55, s.4
44.02(6)Repealed: 2000, c.55, s.4
44.02(7)Repealed: 2000, c.55, s.4
44.02(8)A leave of absence granted under subsection (2) shall commence not earlier than the date on which the newborn or adopted child came into the employee’s care and custody and end not later than fifty-two weeks after that date.
44.02(9)Repealed: 2000, c.55, s.4
44.02(10)Where an employee intends to take a leave of absence under paragraph (2)(a) in addition to a leave of absence under section 43, the employee must commence the leave of absence under paragraph (2)(a) immediately on the expiry of the leave of absence taken under section 43 unless the employer and employee agree otherwise.
44.02(11)Subsection (10) does not apply where a newborn child is hospitalized at the time the leave of absence under section 43 expires.
44.02(12)If both parents are employees, the leave of absence granted under subsection (2) may
(a) be taken wholly by one of the employees, or
(b) be shared by the employees.
44.02(12.1)The aggregate amount of leave that may be taken by two employees under this section with respect to the same birth or adoption shall not exceed thirty-seven weeks.
44.02(12.2)The aggregate amount of leave that may be taken by one or two employees under this section and section 43 with respect to the same birth shall not exceed fifty-two weeks.
44.02(13)Subsection 44(1) applies with the necessary modifications with respect to a leave of absence granted under this section.
1988, c.59, s.18; 1991, c.52, s.5; 2000, c.26, s.106; 2000, c.55, s.4; 2002, c.23, s.1
SICK LEAVE
2000, c.55, s.5
Sick Leave
44.021(1)An employer shall, upon the request of an employee, grant the employee leaves of absence without pay of up to five days during a twelve calendar month period for sick leave if the employee has been in the employ of the employer for more than ninety days.
44.021(2)If an employee requests a leave of absence under subsection (1) that is four or more consecutive calendar days in length, the employer may require the employee to provide the employer with a certificate of a medical practitioner or nurse practitioner certifying that the employee is incapable of working due to illness or injury.
44.021(3)An employee requesting a leave of absence under this section shall advise the employer, subject to subsections (1) and (2), of the anticipated duration of the leave.
44.021(4)The duties of an employer under this section are in addition to and do not derogate from the duties of an employer under section 42.1 of the Workers’ Compensation Act.
2000, c.55, s.5; 2002, c.23, s.1
FAMILY RESPONSIBILITY LEAVE
2000, c.55, s.5
Family Responsibility Leave
44.022(1)An employer shall, upon the request of an employee, grant the employee leaves of absence without pay of up to three days during a twelve calendar month period to meet responsibilities related to the health, care or education of a person in a close family relationship with the employee.
44.022(2)An employee intending to take a leave of absence under this section shall advise the employer of the employee’s intention to take the leave, the anticipated commencement date of the leave and, subject to subsection (1), the anticipated duration of the leave.
2000, c.55, s.5
COURT LEAVE
2000, c.55, s.5
Court Leave
44.023(1)An employer shall grant an employee a leave of absence without pay for any period that the employee is absent from work as a result of being
(a) summoned to serve on a jury,
(b) selected to serve on a jury, or
(c) served with a summons to attend at the hearing of an action, application or proceeding as a witness.
44.023(2)If an employer grants an employee a leave of absence with pay in the circumstances set out in subsection (1), the employer may require the employee to reimburse the employer for any amount that the employee receives as a jury or witness fee, exclusive of any amount that the employee receives as compensation for travel, meal or accommodation expenses.
2000, c.55, s.5
COMPASSIONATE CARE LEAVE
2003, c.30, s.1
Compassionate Care Leave
44.024(1)In this section
“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 person with whom the employee has a close family relationship is provided;
“week” means the period between midnight on Saturday and midnight on the immediately following Saturday.
44.024(2)Subject to subsections (3) to (6), an employer shall, upon the request of an employee, grant the employee a leave of absence without pay from employment of up to eight weeks to provide care or support to a person with whom the employee has a close family relationship, if a qualified medical practitioner issues a certificate stating that the person with whom the employee has a close family relationship has a serious medical condition with a significant risk of death within twenty-six weeks from
(a) the day the certificate is issued, or
(b) if the leave was commenced before the certificate was issued, the day the leave was commenced.
44.024(3)The leave of absence may only be taken during the period
(a) that starts with
(i) the first day of the week in which the certificate is issued, or
(ii) if the leave was commenced before the certificate was issued, the first day of the week in which the leave was commenced if the certificate is valid from any day in that week, and
(b) that ends with the last day of the week in which either of the following first occurs:
(i) the person with whom the employee has a close family relationship dies; or
(ii) the expiration of twenty-six weeks following the first day of the week referred to in paragraph (a).
44.024(4)A leave of absence under this section may only be taken in periods of at least one week’s duration.
44.024(5)The aggregate amount of leave that may be taken by two or more employees under this section for the care or support of the same person with whom the employee has a close family relationship shall not exceed eight weeks in the period referred to in subsection (3).
44.024(6)An employee shall provide the employer with a copy of the certificate referred to in subsection (2), if the employer requests this in writing within fifteen days after an employee’s return to work.
44.024(7)An employee intending to take a leave of absence under this section shall advise the employer as soon as possible of the employee’s intention to take the leave, the anticipated commencement date of the leave, and, subject to subsection (2), the anticipated duration of the leave.
2003, c.30, s.1
BEREAVEMENT
Bereavement
44.03(1)In this section
“funeral” includes a memorial service.
44.03(2)An employer shall grant to an employee a leave of absence without pay of up to five consecutive calendar days on the death of a person in a close family relationship with the employee to be taken during the period of bereavement and to begin not later than the day of the funeral.
44.03(3)An employee intending to take a leave of absence under this section shall advise the employer of the employee’s intention to take the leave, the anticipated commencement date of the leave and, subject to subsection (2), the anticipated duration of the leave.
1988, c.59, s.18; 2000, c.55, s.6
LEAVES GENERALLY
Leaves generally
44.04(1)An employer shall not dismiss, suspend or lay off an employee who has been granted a leave of absence under this Act
(a) during the leave of absence, or
(b) for reasons arising from the leave alone.
44.04(2)An employee who has been granted a leave of absence under this Act
(a) retains seniority accrued up to the commencement of the leave,
(b) continues to accrue seniority during the leave at the same rate of accrual that would have occurred had the employee worked during the leave, and
(c) shall be deemed to have been continuously employed with the same employer during the leave of absence.
44.04(3)Notwithstanding subsection (2), if an employee would have been dismissed, suspended or laid off had the employee not been granted a leave of absence under this Act the seniority of the employee
(a) ceases to accrue as of the date the dismissal would have occurred had the employee not been granted the leave of absence, and
(b) does not accrue during the period of the suspension or lay off that would have occurred had the employee not been granted the leave of absence.
44.04(4)Subsections (1), (2) and (3) apply with the necessary modifications in relation to
(a) an employee who has been granted a leave of absence with or without pay under a collective agreement or a contract of employment similar to a leave of absence to which an employee is entitled under this Act, and
(b) an employee who is absent from work, with or without pay, on a day of vacation or a public holiday to which the employee is entitled under this Act, a collective agreement or a contract of employment.
1988, c.59, s.18; 2000, c.55, s.7
Vacation and public holidays
44.05An employee shall be deemed to have worked on a day of vacation and a public holiday for which the employee was paid.
1988, c.59, s.18
LIE DETECTOR TESTS
Lie detector tests
44.1(1)In this section
“employee” means an employee as defined in section 1 and includes an applicant for employment;
“employer” means an employer as defined in section 1 and includes a prospective employer;
“lie detector test” means an analysis, examination, interrogation or test taken or performed by means of or in conjunction with a device, instrument or machine, whether mechanical, electrical, electromagnetic, electronic or otherwise, and that is taken or performed for the purpose of assessing or purporting to assess the credibility of a person.
44.1(2)An employee has a right not to take or be asked or required to take or submit to a lie detector test.
44.1(3)No person shall require, request, enable or influence, directly or indirectly, an employee to take or submit to a lie detector test.
44.1(4)No person shall communicate or disclose to an employer that an employee has taken a lie detector test, or communicate or disclose to an employer the results of a lie detector test taken in any other jurisdiction.
44.1(5)Where an employer violates a provision of this section the Director may order the employer to do or to refrain from doing anything in order to comply with this section and may order the employer to reinstate or to hire the employee concerned, with or without compensation, or to compensate the employee in lieu of reinstatement or hiring for loss of earnings or other employment benefits in an amount not exceeding four thousand dollars that may be assessed by the Director against the employer.
1984, c.42, s.25
IV
ADMINISTRATION
DIRECTOR
Administration, Director, Deputy Director
45(1)The Minister is charged with the general administration of this Act.
45(2)The Minister shall appoint a person from within the Civil Service as the Director.
45(3)The Minister may appoint an Employment Standards Officer as Deputy Director, and during the absence of the Director from his or her office or when the office of the Director is vacant, the Deputy Director has all the powers and is subject to all the duties of the Director.
1983, c.30, s.8; 1986, c.8, s.37; 1992, c.2, s.19; 1998, c.41, s.50; 2003, c.4, s.9
MINIMUM WAGE BOARD
Rules governing Minimum Wage Board
46(1)There shall be a board consisting of two or more persons equally representative of employees and employers respectively and one additional person who shall be chairman, which board shall be known as the Minimum Wage Board.
46(2)The function of the Minimum Wage Board is to advise the Lieutenant-Governor in Council in accordance with section 10.
1984, c.42, s.26; 1994, c.52, s.1
Rules governing Minimum Wage Board
47(1)The members of the Minimum Wage Board shall be appointed by the Lieutenant-Governor in Council for a term not exceeding four years, shall be paid such per diem allowance on their attendance at the meetings of the Minimum Wage Board as the Lieutenant-Governor in Council may from time to time prescribe, and shall be entitled to reasonable and necessary travelling expenses as fixed by the Lieutenant-Governor in Council.
47(2)A member of the Minimum Wage Board may be reappointed.
47(3)The appointment of any member of the Minimum Wage Board may be revoked by the Lieutenant-Governor in Council for cause.
1984, c.42, s.27; 1994, c.52, s.1
Rules governing Minimum Wage Board
48In conducting an investigation authorized under subsection 10(2), the Minimum Wage Board, and any member authorized to act for the Minimum Wage Board, has the powers, privileges, immunities and responsibilities of a commissioner under the Inquiries Act and regulations thereunder.
1994, c.52, s.1
Rules governing Minimum Wage Board
49A majority of the members of the Minimum Wage Board constitutes a quorum, and the recommendation of a majority of members at any meeting is the recommendation of the Minimum Wage Board.
1994, c.52, s.1
LABOUR AND EMPLOYMENT BOARD
1994, c.52, s.1
Repealed
50Repealed: 1994, c.52, s.1
1984, c.42, s.28; 1987, c.18, s.1; 1994, c.52, s.1
Repealed
51Repealed: 1994, c.52, s.1
1994, c.52, s.1
Repealed
52Repealed: 1994, c.52, s.1
1994, c.52, s.1
Powers of the Board
53(1)The Board and each member has the powers, privileges, immunities and responsibilities of a commissioner under the Inquiries Act and regulations thereunder.
53(2)The Board may receive and accept any evidence and information on oath, affidavit or otherwise as in its discretion it considers fit and proper, whether admissible as evidence in a court or not.
53(3)The Board may make rules governing its procedure.
53(4)Repealed: 1994, c.52, s.1
1991, c.27, s.15; 1994, c.52, s.1
Jurisdiction of the Board
54(1)The Board has exclusive jurisdiction to exercise the powers conferred upon it under this Act and to determine all questions of fact or law that arise in any matter before it including any question as to whether
(a) a person is an employer or employee;
(b) an employer or other person is doing or has done anything contrary to this Act or the regulations, or has failed to do something required by this Act or the regulations;
(c) this Act applies to an employment contract, having regard to section 5; or
(d) the facts of any situation give rise to an exemption under this Act or the regulations.
54(2)A decision, determination, direction, declaration or ruling of the Board is final and conclusive and, except on the grounds of an excess of jurisdiction or a denial of natural justice, shall not be questioned or reviewed in any court, and no order shall be made or proceedings taken in any court, whether by way of injunction, declaratory judgment, order on judicial review or otherwise to question, review, prohibit or restrain the Board or any of its proceedings.
54(3)Where a decision of the Board is reviewed and set aside because of an excess of jurisdiction or a denial of natural justice, no costs shall be awarded against any party to the matter before the Board.
1984, c.42, s.29; 1986, c.32, s.6; 1994, c.52, s.1
Stated case
55(1)Notwithstanding section 54, the Board may of its own motion state a case in writing for the opinion of The Court of Appeal of New Brunswick on any question that, in the opinion of the Board, is a question of law.
55(2)The Court of Appeal of New Brunswick shall hear and determine the question or questions of law arising in the stated case and remit the matter to the Board, with the opinion of the Court thereon; and the opinion of the Court on a question of law is binding on the Board and the parties.
55(3)No costs shall be awarded in any case stated under this section.
1994, c.52, s.1
Repealed
56Repealed: 1994, c.52, s.1
1994, c.52, s.1
EMPLOYMENT STANDARDS OFFICERS
Appointment
57(1)The Minister may appoint persons who are employees under the Civil Service Act as Employment Standards Officers.
57(2)The Minister shall cause to be published in The Royal Gazette the names of persons appointed as Employment Standards Officers.
57(3)Any action in the performance of his duty or exercise of his 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.
1984, c.42, s.30
Powers
58(1)For the purpose of ensuring that the provisions of this Act and the regulations are complied with the Director, or an Employment Standards Officer, may
(a) at any reasonable time enter into or upon any place of employment for the purpose of inspection, investigation or examination of conditions of employment;
(b) between the hours of nine o’clock in the forenoon and four o’clock in the afternoon enter into any office or premises where he has reason to believe employment records are kept or stored, and
(i) require the production for inspection, audit or examination of all books of account, vouchers, payroll records, incorporation certificates, by-laws, minutes of directors’ meetings or other documents that are or may be relevant to the inspection, audit or examination;
(ii) upon giving a receipt therefor, remove anything referred to in sub-paragraph (i) or any other books, papers, records or documents for the purpose of making copies of extracts; but such copies or extracts shall be made with reasonable dispatch and the books, papers, records or documents properly returned thereafter to the person who produced or furnished them not later than five working days after the date on which they were removed; and
(iii) make copies or take abstracts from all such books, papers, records or documents; and
(c) require an employer to provide information upon request, in which case the employer shall, within ten days after receipt of a written request from the Director or from an Employment Standards Officer, or within such longer time as may be allowed by the Director or Employment Standards Officer, file a statement setting forth the information which is required.
58(2)Neither the Director nor an Employment Standards Officer nor a mediator referred to under section 64 is in any civil proceeding a compellable witness respecting any information, statements, books, papers, records or documents acquired, furnished, obtained, made or received under the powers conferred under this Act.
58(3)Neither the Director nor an Employment Standards Officer nor a mediator referred to under section 64 shall be compelled or required to produce in any civil proceeding, any statements, books, papers, records or documents acquired, furnished, obtained, made or received under the powers conferred under this Act.
1984, c.42, s.31; 1996, c.86, s.1
Immunity from action
58.1No action for damages lies against the Province, the Director, an Employment Standards Officer or a mediator referred to under section 64 with respect to anything done or purported to be done in good faith, or with respect to anything omitted in good faith, under this Act or the regulations by the Director, the Employment Standards Officer or the mediator.
1988, c.59, s.18.1
Information that may be required from an employer
59Information that may be requested and that shall be provided by an employer under section 58(1) includes, but is not limited to,
(a) the names and addresses of the employer’s employees;
(b) the ages of the employer’s employees, supported by a certificate of birth of any person who, in the opinion of the Director or an Employment Standards Officer, is apparently under the age of sixteen years and is employed in a place of employment of the employer or, in lieu thereof where production of such certificate is impossible or impracticable, the affidavit of some person having personal knowledge of the facts;
(c) the duties performed by each employee;
(d) the hours of work per day and per week performed by each employee;
(e) the rate of wages per hour, day, week or other period of each employee;
(f) any agreement between the employer and his employees in relation to wages, hours of work or working conditions; and
(g) such other information as to wages paid or, in the case of prospective employment, to be paid, hours of work, working conditions as may be required by notice.
1986, c.32, s.7
EMPLOYER’S RECORDS
Records required to be kept by an employer
60(1)Every employer shall make and keep in the Province for at least thirty-six months after work is performed or service is rendered by an employee, complete and accurate records in respect of the employee sufficient to meet the requirements of a request under section 58(1), including
(a) the employee’s name and address;
(b) the employee’s date of birth;
(c) the employee’s social insurance number;
(d) the date of commencement of employment for the employee;
(e) the number of hours worked by the employee each day and each week;
(f) the employee’s wage rate and gross earnings for each pay period;
(g) the amount of each deduction from the gross earnings of the employee and the purpose for which each deduction is made;
(h) any living allowance or other payment to which the employee is entitled;
(i) any period during which the employee was on vacation;
(j) any vacation pay due or paid to the employee;
(j.1) any public holiday pay due or paid to the employee;
(k) the net amount of money paid to the employee;
(k.1) any period during which the employee was on a leave of absence and the reason for the leave of absence;
(l) any document or certificates relating to a leave of absence of the employee; and
(m) the dates of all dismissals, suspensions or layoffs of the employee and the dates of all notices thereof.
60(2)Where the original records referred to in subsection (1) are maintained by a person, firm, company or partnership other than the employer, the employer shall have and produce on request made under subsection (3) a true and accurate copy of the employment records in respect of each employee required under subsection (1).
60(3)The Minimum Wage Board, the Labour and Employment Board, the Director and an Employment Standards Officer may at any time request from any employer, or from any person, firm, company or partnership maintaining an employee’s records, information required to be kept under subsection (1) with respect to any employee, and such request shall forthwith be complied with.
60(4)Where the employer fails to maintain accurate records in accordance with this Act, the Minimum Wage Board, the Labour and Employment Board or the Director may accept the evidence of an employee with respect to his employment, and the onus of proving the contrary shall be on the employer.
1988, c.59, s.19; 1994, c.52, s.1; 2003, c.4, s.10
V
ENFORCEMENT
COMPLAINTS AND ADMINISTRATIVE ORDERS
Complaint to Director
61(1)Any person who believes that
(a) there has been a violation of Part III by an employer, an employee or any other person; or
(b) he has been denied a right or benefit arising under Part III;
may, within twelve months after the alleged violation or denial, make a complaint to the Director in any form.
61(2)The Director may agree to keep confidential the identity of a complainant where he is satisfied that there exists a possibility of intimidation or retaliation by any person towards the complainant.
Procedure to be followed by Director
62(1)Subject to subsections (2) and (3), where the Director is satisfied that the allegations contained in a complaint disclose a violation of Part III, or a denial of a right or benefit arising under Part III, he shall act upon the complaint and, where mediation is not attempted under section 64 or is unsuccessful, shall cause an investigation to be undertaken with respect thereto.
62(2)The Director shall not act upon a complaint unless he is satisfied that the person making the complaint, or the person identified in the complaint as the person who has been denied a right or benefit under Part III or in respect of whom it is alleged that Part III was violated, is unable to grieve the subject matter of the complaint under the provisions of a collective agreement.
62(3)The Director shall not act upon a complaint if it is or has been the subject matter of a proceeding before a court of competent jurisdiction within New Brunswick.
62(4)Where the Director has agreed to keep confidential the identity of the complainant he may refuse to act upon the complaint or to proceed with an investigation where he is satisfied that to keep confidential the identity of the complainant would unduly impede the investigation of the complaint or would be unfair to a person against whom an allegation has been made in the complaint.
1984, c.42, s.32
Orders that may be made by Director
63(1)When the Director investigates pursuant to a complaint made under subsection 61(1) he may make an order respecting any violation of Part III or any denial of a right or benefit arising under Part III disclosed in his investigation and occurring within twelve months preceding the complaint.
63(2)Where the Director’s investigation is not pursuant to a complaint under subsection 61(1), any order made by the Director shall only relate to a violation or denial occurring within twelve months prior to the date of the order.
Appointment, role of mediator
64(1)The Director may, at any point after a complaint has been made, appoint, on such terms and conditions as may be established in the appointment, a mediator to attempt to settle the subject matter of the complaint.
64(2)In the event that the parties reach an agreement with respect to the disposition of the complaint the mediator shall report to the Director the terms and conditions of such agreement.
64(3)The Director may make an order to implement the terms and conditions of such an agreement and an order so made shall have the same force and effect as an order made under section 65.
64(4)In the event that mediation is unsuccessful in assisting the parties to reach an agreement within such period as may be established by the Director, the mediator shall report that fact to the Director, but he shall not report to the Director, nor reveal to anyone, any communications that were made during the mediation process, or any information derived from such communications.
64(5)A mediator who deals with a complaint made to the Director shall not, upon the completion of his mediation role, participate in any way in any subsequent investigation into the alleged complaint.
1984, c.42, s.33
Orders that may be made by Director
65(1)Where the Director is satisfied upon reasonable grounds that a person has not complied with the provisions of this Act or the regulations, or the provisions of an order made under subsection 64(3), he may make an order with respect to any of the following matters, namely:
(a) directing the person to refrain from acts that violate the Act or regulations;
(b) directing the person to comply with the Act and the regulations;
(c) requiring the person to pay a stated amount representing
(i) wages owing to an employee;
(ii) vacation pay or pay in lieu of vacation owing to an employee;
(ii.1) public holiday pay or pay in lieu of public holidays owing to an employee;
(iii) any other benefit owing to an employee;
(iv) payment in lieu of notice of termination to an employee;
(v) compensation for economic loss caused to a person by virtue of non-compliance with the Act or regulations; or
(d) directing the reinstatement of an employee to a former position or his assignment to an equivalent position.
65(2)The Director is not required to serve notice upon or hear any person before making an order under subsection (1) or before advising a complainant that there has been no failure to comply with this Act or the regulations.
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 his opinion, has not been complied with and shall advise the person against whom the order is made of his right to require the Director to refer the matter to the Board.
1984, c.42, s.34; 1986, c.32, s.8; 1988, c.59, s.20; 1994, c.52, s.1
Notification to complainant
66Where, after receiving a complaint under this Act, the Director determines
(a) that the complaint is not one he is required to act upon; or
(b) that, having acted upon the complaint, there has been no failure to comply with this Act or the regulations or with an order made under subsection 64(3);
he shall so inform the complainant and advise him of his right to require the Director to refer the matter to the Board.
1984, c.42, s.35; 1994, c.52, s.1
Referral of matter to Board
(a) a person against whom an order is made by the Director makes a written request to the Director within ten days after the order is served upon him that the Director refer the matter to the Board; or
(b) a complainant whose complaint has been acted upon and dismissed by the Director makes a written request to the Director, within ten days after being so advised in writing, to refer the matter to the Board,
the Director shall, within ten days after receiving the request,
(c) file with the Board a copy of the order and the complaint, if any; and
(d) request the Board to arrange for the hearing of the matter.
67(2)The Director shall forward to the Board any requests to refer a matter to it, and the Board may hear any matter so referred to it, notwithstanding that a time period set out in subsection (1) was not complied with.
67(3)Where a matter is referred to the Board, any order of the Director with respect thereto, unless otherwise directed by the Board, is stayed pending the disposition of the matter by the Board.
1984, c.42, s.36; 1994, c.52, s.1
Procedure before Board
68(1)Where a matter is referred to the Board under section 8 or under subsection 67(1), the Board shall, as soon as it can conveniently be arranged, hear the matter so referred.
68(2)The Board shall set a date for a hearing, which, unless the parties consent to a later date, shall be not later than twenty days after the matter was referred to the Board, and shall serve notice of the hearing on the parties at least ten days before the date set.
68(3)The notice of hearing shall contain
(a) a statement of the time and place of the hearing;
(b) a reference to the provision of this Act under which the hearing is being held;
(c) a statement as to where and how further information on the proceedings may be obtained;
(d) a concise statement of the issue; and
(e) a statement that, if a party who has been duly notified does not attend at the hearing, the Board may proceed in his absence and he is not entitled to notice of any further proceedings.
68(4)If a person who has been notified of a hearing does not attend, the Board may proceed in his absence and he is not entitled to notice of any further proceedings.
1984, c.42, s.37; 1994, c.52, s.1
Parties before Board
69(1)The Director shall be a party to any matter referred to the Board and is responsible to present a case in support of any decision or order he has made.
69(2)In any matter referred to the Board under section 8 or under subsection 67(1), the complainant, the person against whom the order is made or an allegation in a complaint is made, the Director and any other person who, in the opinion of the Board, is interested in or affected by the proceedings has the right to be heard.
69(3)Where a group of persons having the same or substantially the same interest has a complaint pursuant to this Act, one complaint may be made in a representative capacity.
1984, c.42, s.38; 1994, c.52, s.1
Hearings of Board, in public or in camera
70All hearings of the Board are open to the public except where the Board finds that intimate financial, personal or other matters may be disclosed at the hearing of a nature that, having regard to the circumstances, the desirability of avoiding their disclosure in the interests of any person affected, or in the public interest, outweighs the desirability of adhering to the principle that hearings be open to the public in which case the Board may hold the hearing concerning the matters in camera.
1994, c.52, s.1
Employer may be required to provide bond
71(1)Before proceeding to deal with any matter referred to the Board at the request of an employer, the Board may require the employer to furnish to the Board security in the form of a bond with one or more sureties acceptable to the Board in such amount and subject to such conditions as may be prescribed by regulation.
71(2)Where an employer has furnished a bond under subsection (1), and the Board, after completion of its consideration of and the investigation into the complaint of the employee, finds that the employer is indebted to the employee for unpaid pay it may, on ten days’ notice to the employer and the sureties and in the event the debt is not paid, realize upon the bond and apply the proceeds thereof towards the payment of the debt.
71(3)Where, under subsection (2), the Board has realized upon the bond and applied the proceeds thereof towards the payment of unpaid pay, it shall in writing, as soon as is reasonably possible, notify the employer to that effect and where after the application of the proceeds there remains a surplus of funds, the surplus shall be turned over by the Board to the sureties.
1994, c.52, s.1
Attaching order issued by Director
72(1)Where a complaint is received by the Director and the Director has knowledge or has reason to believe that a person is or is about to become indebted to the employer for any sum of money or that a person is about to pay to the employer a sum of money, the Director may, notwithstanding that he has not determined whether or not the employer is indebted to the employee for unpaid pay as alleged, serve an attaching order on that person in a form prescribed by regulation requiring him to pay to the Board part or all of the sum of money owing, likely to be owed or about to be paid by him to the employer.
72(2)For the purpose of this section, money on deposit in a general banking account or in a credit union account in the name of an employer is money for which the holder of the account is indebted to the employer.
72(3)Serving the attaching order referred to in subsection (1) binds the debt in the hands of the person upon whom it is served and has priority over any other attaching order subsequently served.
72(4)A person to whom an attaching order of the Director under subsection (1) is directed shall upon service of the order forthwith comply with the order.
72(5)Immediately upon receipt of any money in accordance with this section, the Board shall in writing notify the employer concerned and issue a receipt thereof to the person from whom the money was received; and the receipt of the Board is a good and sufficient discharge of the liability of the person to whom the order was directed to the employer to the extent of the amount shown on the receipt.
72(6)Any money received by the Board under this section shall be held by the Board in trust for the employer concerned and where
(a) the Director finds that the employer is indebted to the employee for unpaid pay and the period for appeal to the Board has expired; or
(b) the Board has determined that the employer is indebted to the employee for unpaid pay;
the Board shall pay over the amount of unpaid pay as determined by it and if, after making such payment, there remains a surplus the surplus shall be paid to the employer.
72(7)An attaching order referred to in subsection (1) ceases to be valid after the expiration of the prescribed period unless, before the expiration of that period, the Director causes a renewal of the attaching order in the prescribed form to be served on the person on whom the original attaching order was served.
1984, c.42, s.39; 1994, c.52, s.1; 2003, c.4, s.11
Orders and records of Board
73(1)Where a matter has been referred to the Board under section 8 or under subsection 67(1), the Board may, after hearing and considering the matter, issue an order
(a) affirming the decision or order of the Director;
(b) vacating the decision or order of the Director and substituting the decision or order that, in its opinion, the Director should have made; or
(c) remitting the matter to the Director for further investigation, with such directions as the Board considers appropriate;
and in every case the Board shall in writing so advise all parties to the proceeding of its disposition and the reasons therefor.
73(2)With respect to any matter heard by the Board the record of the Board shall comprise
(a) the notice of hearing;
(b) the complaint;
(c) any ruling or orders made in the course of the proceeding by the Board;
(d) any written submissions received by the Board;
(e) the evidence recorded; and
(f) the decision and reasons therefor.
1986, c.32, s.9; 1994, c.52, s.1
Filing of certificate in Court of Queen’s Bench
74(1)Where there is an order of the Director or the Board in effect for the payment of money in respect of pay, compensation or any benefit, the Director or the Board, as the case may be, may issue a certificate in a form prescribed by regulation stating the amount owing under the order from time to time, and such certificate may be filed in The Court of Queen’s Bench of New Brunswick and enforced as if it were a judgment of The Court of Queen’s Bench of New Brunswick in that amount.
74(2)Where a certificate of the Director or the Board has been filed in accordance with subsection (1), any person other than the person against whom it is made may challenge the certificate in interpleader proceedings or on application to set aside any execution thereunder as provided for by the rules of The Court of Queen’s Bench of New Brunswick and The Court of Appeal of New Brunswick, but the certificate of the Director or the Board is, in the absence of evidence to the contrary, proof that the amount of money ordered to be paid was due and owing when the certificate was made.
74(3)For purposes of subsection (1) and (2) the Chairperson of the Board may issue a certificate on behalf of the Board.
74(4)The responsibility for filing and enforcing a certificate issued under subsection (1) shall be upon the Director, but nothing herein shall be construed to limit the right of any interested person to file and enforce it.
1984, c.42, s.40; 1994, c.52, s.1
Failure to comply with order
75(1)Notwithstanding section 74, where an order of the Director has not been complied with the Director or any other interested person may apply to the Board for a summons requiring a person named therein to appear before the Board to show cause why the order has not been complied with and why a further order should not be made.
Failure to comply with order
(a) an application has been made under subsection (1); or
(b) an order of the Board has not been complied with;
the Board may issue a summons requiring a person named therein to appear before the Board to show cause why the order has not been complied with and why a further order should not be made.
Further orders that may be issued by Board
75(3)Where the Board determines that a person has, without reasonable cause, failed or refused to comply with an order of the Director or the Board it may, by a further order,
(a) require that person to pay to a named person an amount to compensate him for loss suffered because of the failure or refusal to comply with the previous order;
(b) stipulate that the continuing failure or refusal of that person without reasonable cause to comply with the previous order will result in a penalty of a stated amount for each day the failure or refusal continues, not to exceed one thousand dollars for each such day, to be imposed by an order issued after a further show cause hearing; and
(c) where the person is a corporation, stipulate that the continuing failure or refusal of the corporation to comply with the order without reasonable cause will result in a further order imposing personal liability on each director and officer of the corporation to a penalty not exceeding that established in paragraph (b) and to be determined after a show cause hearing, unless at such hearing the officer or director establishes that he has exercised reasonable diligence to see that the order was complied with by the corporation.
75(4)Any summons issued under this part by the Board may be served outside New Brunswick, and a failure to appear by any person summoned shall not affect the authority of the Board to act.
1984, c.42, s.41; 1994, c.52, s.1
Remedies available to interested persons
76(1)Notwithstanding the responsibility placed upon the Director by this Part to refer matters to the Board for disposition, any interested person may, if the Director fails or refuses to act in compliance with this Part, request in any form that the Board consider any matter that the Director might have referred to the Board.
76(2)Nothing in this Act shall be construed to abridge or interfere with the right of any person to seek a judicial remedy in lieu of a remedy provided under this Act.
1994, c.52, s.1
Payment by Minister
77(1)Upon the application of an employee entitled to
(a) wages,
(b) vacation pay or pay in lieu of vacation,
(b.1) public holiday pay or pay in lieu of public holidays, or
(c) pay in lieu of notice of termination,
the Minister may, where
(d) he is satisfied that all reasonable efforts have been made to obtain payment from the employer and money remains owing,
(e) an order made by the Director under subsection 65(1) with respect to such wages or pay
(i) has not been referred to the Board or, if so referred, has been affirmed by the Board, or
(ii) has not been referred to the Board and the time set for referring the matter to the Board has expired, or
(f) an order made by the Board, under subsection 73(1) with respect to such wages or pay is not the subject of judicial review proceedings and thirty days have expired since its making,
pay to the employee from funds appropriated for the purpose an amount equal to the amount to which the employee is entitled.
77(2)Where the Minister makes a payment under subsection (1) Her Majesty in right of the Province, as represented by the Minister, shall be subrogated to all rights of the person to whom payment was made in respect of all claims represented in the application for payment.
77(3)The Minister shall serve on the employer notice of the payment made under subsection (1), and after such notice the employer shall make all payments under this Act in respect of all claims represented in the application for payment directly to the Minister and is liable therefor to Her Majesty in right of the Province.
77(4)The Minister may issue a certificate naming the employer and stating the amount for which the employer is liable to Her Majesty in right of the Province under this section; and such certificate may be filed in The Court of Queen’s Bench of New Brunswick, and shall be entered and recorded in the Court, and when so entered and recorded becomes a judgment of the Court and may be enforced as a judgment obtained in the Court by Her Majesty against the person named in the certificate for a debt of the amount specified in the certificate.
77(5)This section applies in respect of vacation pay and pay in lieu of vacation for the vacation year ending June 30, 1982, and to subsequent vacation pay years.
1984, c.42, s.42; 1988, c.59, s.21; 1994, c.52, s.1
OFFENCES
Offence re failure to comply with order
78(1)Any person who, without reasonable cause, fails or refuses to comply with an order of the Board commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category F offence.
78(2)As well as imposing a fine the court may stipulate that an additional amount be paid into court for the purpose of satisfying in whole or in part an amount payable by the convicted person under the order in respect of which the violation occurred, and the court shall, in such case, upon receipt of the amount, pay the amount to the person named in the order.
78(3)Except with respect to a payment made under subsection (2), a conviction for an offence under subsection (1) does not relieve the convicted person of the obligation to comply with the order of the Board or to pay any amount established by the Board by way of debt, compensation or penalty under any provision of this Act.
78(4)No prosecution for an offence under subsection (1) shall be instituted without the consent in writing of the Minister.
78(5)A writing by the Minister indicating that he has consented to the prosecution of the person named therein for an offence under this Act alleged to have been committed, or, in the case of a continuing offence, alleged to have commenced on a date therein set out, is a sufficient consent for the purposes of this section to the prosecution of the person for an offence under this section committed or commencing on that date.
78(6)Where an offence under subsection (1) continues for more than one day,
(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and
(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.
1984, c.42, s.43; 1990, c.61, s.43; 1994, c.52, s.1
Offence re failure to comply with section 32
79Any employer who, without reasonable cause, fails or refuses to comply with section 32 commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence.
1990, c.61, s.43
Offence re failure to provide information, interference or obstruction
80Any person who, without reasonable cause,
(a) fails or refuses to permit an Employment Standards Officer to enter any premises he is authorized to enter under section 58;
(b) fails or refuses to provide, for any purpose set out in section 58, any material or information required by that section to be provided;
(c) fails or refuses to provide information requested under subsection 60(3); or
(d) interferes with or obstructs in any way an Employment Standards Officer in the performance of his duties under this Act;
commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category E offence.
1990, c.61, s.43
Offence re failure to comply with subsection 60(1)
81Any person who violates or fails to comply with subsection 60(1) commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category C offence.
1984, c.42, s.44; 1990, c.61, s.43
Offences and penalties
82Any person who
(a) wilfully makes or causes to be made false or misleading entries in any records that he is required to keep by this Act or by the regulations; or
(b) wilfully supplies or causes to be supplied false or misleading information to the Director, the Board, the Minimum Wage Board or an Employment Standards Officer;
commits an offence punishable under Part II of the Provincial Offences Procedure Act as a category F offence.
1990, c.61, s.43; 1994, c.52, s.1
Employees
83Where an employer is prosecuted under this Act the act or omission of any employee shall be deemed to be the act or omission of the employer unless the employer establishes that the act or omission occurred despite the fact the employer, and each employee exercising supervisory responsibilities on behalf of the employer, took all reasonable care to avoid it.
Officers and directors of a corporation
84Where an offence under this Act is committed by a corporation each officer and director of the corporation commits the offence unless he can establish that the offence was committed without his knowledge or consent, was not acquiesed in by him, and that the offence occurred despite the exercise of reasonable diligence by him in the performance of his responsibilities to the corporation.
1984, c.42, s.45
VI
MISCELLANEOUS
Regulations
85The Lieutenant-Governor in Council may make regulations concerning any matter for the effectual working of this Act and, without limiting the generality of the foregoing, may by regulation
(a) prohibit the employment of persons under a specified age in any specified occupation or class of work;
(b) exempt any employer or class of employers from any notice requirements of this Act;
(c) establish the amounts, terms and conditions of any bond which may be required to be provided under this Act;
(d) require the use by employers in industrial undertakings of mechanical or other devices for ascertaining or assisting in ascertaining or for recording the time worked by employees and other information required for the administration of this Act;
(e) prescribe additional notice requirements for minimum wage regulations;
(e.1) prescribe the period after which an attaching order ceases to be valid;
(f) prescribe the procedure to be followed and the forms to be used in any proceeding under this Act;
(g) prescribe the form and manner in which any notice shall be given; and
(h) provide generally for the better administration of this Act.
2003, c.4, s.12
Service of documents
86(1)A document, notice or other communication required to be served under this Act is sufficiently given or served if served personally on a person or on an adult residing at the residence of the person who is at that residence at the time of service, or if delivered by mail to such residence or by any other means prescribed by regulation.
86(2)For the purposes of this Act and any proceedings thereunder, any document, notice or communication sent by mail shall be presumed, unless the contrary is proven, to have been delivered to the residence to which it was addressed on the fourth day after the day of mailing.
1984, c.42, s.46
Presumption concerning the contents of a certificate
87A certificate purporting to be signed by seal, stamp or in any other way by the Minister or the Deputy Minister or other official of the Department of Post-Secondary Education and Training stating that a report, request or notice was or was not received, served or given by the Minister, Deputy Minister or by an official of the Department pursuant to this Act, and if so received, served or given, the date upon which it was received, served or given, is, in the absence of evidence to the contrary, proof of the facts stated therein without proof of the signature or office of the person purporting to have signed the certificate.
1983, c.30, s.8; 1984, c.42, s.47; 1986, c.8, s.37; 1992, c.2, s.19; 1998, c.41, s.50; 2000, c.26, s.106; 2006, c.16, s.60
Proceedings not invalid because of formal, technical defect
88No proceedings under this Act are invalid by reason of any defect in form or technical irregularity.
Continuity of employment
89Where an activity, business, trade or undertaking is disposed of, transferred or sold in any manner or amalgamated, whether by agreement, will, instrument, transfer, including transfer of shares, or by operation of law, the period of employment of an employee of the activity, business, trade or undertaking at the time of such disposition, transfer, sale or amalgamation, shall be deemed to have been a period of employment with the disposee, transferee, purchaser or amalgamation and the continuity of employment shall be deemed to be unbroken.
Admissibility of documents
90A document purporting to contain or to be a copy of any ruling, decision or order of the Director and purporting to be signed by the Director shall be accepted by any court as evidence of the ruling, decision, or order.
1984, c.42, s.48; 1994, c.52, s.1
Reciprocal enforcement of orders, certificates and judgments
90.1(1)If the Lieutenant-Governor in Council is satisfied that reciprocal provision has been or will be made by any other province or territory of Canada for the enforcement of orders, certificates or judgments under this Act for the payment of wages, public holiday pay or pay in lieu of public holidays, vacation pay or pay in lieu of vacation, pay in lieu of notice of termination or any other benefit owing to an employee, the Lieutenant-Governor in Council may, by Order in Council,
(a) declare that province or territory to be a reciprocating province or territory for the purpose of enforcing orders, certificates or judgments for the payment of wages, public holiday pay or pay in lieu of public holidays, vacation pay or pay in lieu of vacation, pay in lieu of notice of termination or any other benefit owing to an employee under an enactment of that province or territory, and
(b) designate an authority of that province or territory for the purpose of this section.
90.1(2)If an order, certificate or judgment for the payment of wages, public holiday pay or pay in lieu of public holidays, vacation pay or pay in lieu of vacation, pay in lieu of notice of termination or any other benefit owing to an employee has been made, issued or obtained under an enactment of a reciprocating province or territory, the authority of that province or territory designated under paragraph (1)(b) may apply to the Director to enforce the order, certificate or judgment.
90.1(3)An application under subsection (2) shall be accompanied by a copy of the order, certificate or judgment made, issued or obtained under an enactment of the reciprocating province or territory
(a) certified to be a true copy by the court in which the order, certificate or judgment is registered, or
(b) if there is no provision in the reciprocating province or territory for registration of the order, certificate or judgment in a court, certified to be a true copy by the authority of the reciprocating province or territory designated under paragraph (1)(b).
90.1(4)If, on receipt of an application under subsection (2), the Director is satisfied that wages, public holiday pay or pay in lieu of public holidays, vacation pay or pay in lieu of vacation, pay in lieu of notice of termination or any other benefit owing to an employee is still owing, the Director shall file the copy of the order, certificate or judgment in The Court of Queen’s Bench of New Brunswick and the order, certificate or judgment is then enforceable in favour of the Director or the authority of the reciprocating province or territory designated under paragraph (1)(b) as if the order, certificate or judgment were a judgment of The Court of Queen’s Bench of New Brunswick.
90.1(5)The Regulations Act does not apply to an Order in Council made under subsection (1).
1996, c.86, s.2
VII
REPEALS AND TRANSITIONAL
PROVISIONS
Power of Lieutenant-Governor to grant exemptions
91The Lieutenant-Governor in Council may by regulation exempt in whole or in part from a regulation made under this Act the parties to, and persons covered by, a collective agreement existing at the time the regulation is made but such exemption shall apply only until the expiration or termination of the collective agreement.
Repeal of certain Acts
92(1)The Acts set out in Schedule A are repealed.
92(2)Notwithstanding subsection (1), any order or schedule made under any Act named in Schedule A and in force immediately prior to the coming into force of this section remains in effect until the sooner of
(a) one year after the coming into force of this section; or
(b) the taking effect of a regulation made under this Act repealing the order or schedule made under an Act named in Schedule A, and for this purpose the Lieutenant-Governor in Council may in any regulation made under this Act repeal any order or schedule made under any Act named in Schedule A that remains in effect pursuant to this subsection.
1984, c.42, s.49
Repealed
93Repealed: 1984, c.42, s.50
1984, c.42, s.50
Commencement
94This Act or any provision thereof comes into force on a day to be fixed by proclamation.
SCHEDULE A
Employment Standards Advisory Board Act
Fair Wages and Hours of Labour Act
Industrial Standards Act
Minimum Employment Standards Act
Minimum Wage Act
Vacation Pay Act
N.B. Sections 45-60 and 85 of this Act were proclaimed and came into force May 16, 1985.
N.B. Sections 1-24, 25(1), 26-44.1, 61-76, 78-84, 86-94 of this Act were proclaimed and came into force December 1, 1985.
N.B. This Act is consolidated to June 22, 2006.