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Statutes of Newfoundland 1992


CHAPTER 17

CHAPTER 17

AN ACT TO AMEND THE LABOUR STANDARDS ACT

(Assented to June 11, 1992)

Analysis

1. S.2 Amdt.
Definitions

2. S.9(2) Amdt.
Vacation pay

3. S.17 Amdt.
Where holiday worked

4. S.18 Amdt.
Employee's holiday wages

5. S.19 Amdt.
Employees ineligible for holiday

6. S.21(b) R&S
Definitions

7. S.21.1 Added
Designation of week

8. S.24 R&S
Rest period

9. S.27(2)(e) R&S
Special wage rates

10. S.29 Rep.
Handicapped employees

11. S.30 R&S
Duty to review

12. S.31(1) R&S
Payment of minimum wage

13. Parts VII & VIII R&S

PART VII
PREGNANCY, ADOPTION AND PARENTAL LEAVE
S.39 Definitions
S.40 Pregnancy leave
S.41 Special circumstances
S.42 End of pregnancy leave
S.43. Adoption leave
S.43.1 Special circumstances S.43.2 End of adoption leave S.43.3 Parental leave
S.43.4 Special circumstances S.43.5 End of parental leave S.43.6 Change of notice S.43.7 Employee's rights after leave
S.43.8 Effect of leave on benefits
S.43.9 Employee may not be dismissed

PART VII.1 BEREAVEMENT AND SICK LEAVE
S.43.10 Bereavement and sick leave

PART VII.2 TRAVEL COSTS
S.43.11 Travel costs from remote sites

14. S.51 Amdt.
Notice of termination or lay-off

15. S.52 Amdt.
No termination without notice

16. S.53 Amdt.
Where notice necessary

17. S.54 Amdt.
Notice unnecessary

18. S.56 R&S
Provisions re: notice

19. S.62 Amdt.
Powers of director

20. S.63 Amdt.
Records to be kept

21. S.66(1) Amdt.
Regulations

22. S.67 R&S
Panel of adjudicators

23. S.68 Amdt.
Powers of adjudicator

24. S.69 Amdt.
Application for order

25. S.70 Amdt.
Hearing

26. S.71 R&S
Adjudicator's appointment continued

27. S.72 Amdt.
Appeal from adjudicator

28. S.73 Amdt.
Offence and penalty

29. S.74(1) R&S
Enforcement of judges order

30. S.79 R&S
Proof of service

31. S.79.1 Added
Calculation of wages owing

32. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


RSN 1990 cL-2

1. (1) Paragraph 2(a) of the Labour Standards Act is renumbered as paragraph 2(a.1).

(2) Section 2 of the Act is further amended by adding immediately before paragraph (a.1) the following:

(a) "adjudicator" means an adjudicator appointed under section 63;

(3) Paragraph 2(s) of the Act is repealed.

2. Subsection 9(2) of the Act is amended by striking out the words "two weeks" and substituting the figure and word "1 week".

3. (1) Section 17 of the Act is renumbered as subsection 17(1).

(2) Paragraph 17(1)(a) of the Act is repealed and the following substituted:

(a) pay to the employee twice the wages properly earned by the employee for that day under the contract of service as if that day were a normal working day;

(3) Section 17 of the Act is further amended by adding immediately after subsection (1) the following:

(2) Notwithstanding paragraph (1)(a), where an employer requires an employee to work on a public holiday for a number of hours that is less than the number of hours that the employee would work if it were a normal working day, the employer shall pay to the employee his or her normal wages for the number of hours worked, plus the wages the employee would have earned if the day were a normal working day.

4. Paragraph 18(2)(a) of the Act is repealed and the following substituted:

(a) pay to the employee twice the wages properly earned by the employee for that day under the contract of service as if that day were a normal working day;

5. (1) Paragraph 19(1)(b) of the Act is repealed and the following substituted:

(b) if the employee has, during the 30 days immediately preceding the public holiday, been absent from work for more than 15 days for a reason other than

(i) adoption leave,

(ii) annual vacation,

(iii) bereavement leave,

(iv) parental leave,

(v) pregnancy, or

(vi) sick leave.

(2) Subsection 19(2) of the Act is repealed and the following substituted:

(2) Paragraph (1)(b) does not apply to an employee who, in the 30 day period immediately preceding the public holiday, works the number of hours which may be prescribed by the Lieutenant-Governor in Council.

6. Paragraph 21(b) of the Act is repealed and the following substituted:

(b) "week" means a period of 7 continuous days designated and consistently used by an employer for the purpose of this Part, or a period of 7 continuous days beginning after midnight on a day that may be prescribed by the regulations.

7. The Act is further amended by adding immediately after section 21 the following:

Designation of week

21.1 (1) An employer may designate a period of 7 continuous days as a week for the purpose of this Part.

(2) Where an employer who has designated a period of 7 continuous days as a week for the purpose of this Part changes that designation and an employee of the employer believes that he or she has suffered a loss of wages as a result of the change of designation, the employee may make a complaint to the director.

(3) Where a complaint is made against an employer under subsection (2), the onus of proving that an employee of his or hers has not suffered a loss of wages as a result of the change of designation rests with the employer.

8. Section 24 of the Act is repealed and the following substituted:

Rest period

24. (1) Subject to the regulations, an employer shall permit an employee to take an unbroken rest period of 1 hour immediately following each 5 consecutive hours employed under the contract of service.

(2) A collective agreement within the meaning of the Labour Relations Act or in a written contract of service between the employer and the employee may make provision for a rest period that differs from that provided for in subsection (1) both with respect to its duration and timing and a rest period set out in that collective agreement or written contract of service shall be considered to be a rest period for the purpose of this Part in respect of an employer and an employee bound by the collective agreement or written contract of service.

9. Paragraph 27(2)(e) of the Act is repealed and the following substituted:

(e) special minimum rates of wages for apprentices or inexperienced employees;

10. Section 29 of the Act is repealed.

11. Section 30 of the Act is repealed and the following substituted:

Duty to review

30. Every 2 years from the date of coming into effect of regulations made under section 28 or within the lesser period that the board considers expedient, or the Lieutenant-Governor in Council directs, the board shall review the regulations and recommend to the Lieutenant-Governor in Council that they continue in force, be amended or repealed and the Lieutenant-Governor in Council may give effect to those recommendations.

12. Subsection 31(1) of the Act is repealed and the following substituted:

Payment of minimum wage

31. (1) An employer to whom a regulation made under section 28 applies shall pay to an employee wages that are not below the rate set out in the regulation.

13. Parts VII and VIII of the Act are repealed and the following substituted:

PART VII

PREGNANCY, ADOPTION AND PARENTAL LEAVE

Definitions

39. In this Part

(a) "adoption leave" means a leave of absence under section 43;

(b) "parent" includes a person with whom a child is placed for adoption;

(c) "parental leave" means a leave of absence under section 43.3; and

(d) "pregnancy leave" means a leave of absence under section 40.

Pregnancy leave

40. (1) A pregnant employee who has been employed under a contract of service with the same employer for a period of 20 consecutive weeks immediately before the expected birth date is entitled to a leave of absence without pay.

(2) An employee may begin pregnancy leave no earlier than 17 weeks before the expected birth date.

(3) An employee shall give her employer

(a) at least 2 weeks written notice of the date the leave is to begin; and

(b) a certificate from a legally qualified medical practitioner stating the estimated birth date.

Special circumstances

41. (1) Subsection 40(3) does not apply in the case of an employee who stops working because of complications caused by her pregnancy or because of a birth, still-birth or miscarriage that happens earlier than the employee was expected to give birth.

(2) An employee referred to in subsection (1) shall, within 2 weeks of stopping work, give to her employer

(a) written notice of the date the pregnancy leave began or is to begin; and

(b) a certificate from a qualified medical practitioner that

(i) in the case of an employee who stops working because of complications caused by her pregnancy, states the employee is unable to perform her duties because of complications caused by her pregnancy and states the expected birth date, or

(ii) in other cases, states the date of the birth, still-birth or miscarriage and the date the employee was expected to give birth.

End of pregnancy leave

42. (1) The pregnancy leave of an employee who is entitled to take parental leave ends 17 weeks after the pregnancy leave begins.

(2) The pregnancy leave of an employee who is not entitled to take parental leave ends either 17 weeks after the pregnancy leave began or the day that is 6 weeks after the birth, still-birth or miscarriage whichever is the later.

(3) The pregnancy leave of an employee ends on a day earlier than the day provided for in subsection (1) or (2) if the employee gives the employer at least 4 weeks written notice of that day.

(4) An employee who is on pregnancy leave and who does not intend to take parental leave shall notify her employer not less than 4 weeks before the date on which she intends to return to work.

Adoption leave

43. (1) An employee who has been employed under a contract of service with the same employer for at least 20 consecutive weeks and who is the parent of a child is entitled to a leave of absence without pay following the coming of the child into the care and custody of the parent for the 1st time.

(2) An employee shall give his or her employer at least 2 weeks written notice of the date the leave is to begin.

Special circumstances

43.1 (1) Subsection 43(2) does not apply in the case of an employee who is the parent of a child and who stops working because the child comes into the care and custody of the employee for the 1st time sooner than expected.

(2) The adoption leave of an employee referred to in subsection (1) begins on the day the employee stops working.

(3) An employee referred to in subsection (1) shall give his or her employer written notice that the employee wishes to take adoption leave within 2 weeks after the employee stops working.

End of adoption leave

43.2 Adoption leave ends 17 weeks after it began or on an earlier day if the employee gives his or her employer at least 4 weeks written notice of that day.

Parental leave

43.3 (1) An employee who has been employed under a contract of service with the same employer for at least 20 consecutive weeks and who is the parent of a child is entitled to a leave of absence without pay following

(a) the birth of the child; or

(b) the coming of the child into the care and custody of the parent for the 1st time.

(2) Parental leave may begin no more than 35 weeks after the day the child is born or comes into the care and custody of a parent for the 1st time.

(3) The parental leave of an employee who takes pregnancy leave shall begin when the pregnancy leave ends unless the child has not yet come into the care and custody of the parent for the 1st time.

(4) An employee shall give his or her employer at least 2 weeks written notice of the date the leave is to begin.

Special circumstances

43.4 (1) Subsection 43.3(4) does not apply in the case of an employee who is the parent of a child and who stops working because the child comes into the custody, care and control of a parent for the 1st time sooner than expected.

(2) The parental leave of an employee referred to in subsection (1) begins on the day the employee stops working.

(3) An employee referred to in subsection (1) shall give his or her employer written notice that the employee wishes to take leave within 2 weeks after the employee stops working.

End of parental leave

43.5 Parental leave ends 12 weeks after it began or on an earlier day if the employee gives the employer at least 4 weeks written notice of that day.

Change of notice

43.6 (1) An employee who has given notice to begin pregnancy, adoption or parental leave may change the notice

(a) to an earlier date where the employee gives the employer 2 weeks written notice before the earlier date; or

(b) to a later date where the employee gives the employer at least 2 weeks written notice before the date leave was to begin.

(2) An employee who has given notice to end his or her pregnancy, adoption or parental leave may change the notice

(a) to an earlier date where the employee gives the employer at least 4 weeks written notice before the earlier date; or

(b) to a later date where the employee gives the employer at least 4 weeks written notice before the date leave was to end.

Employee's rights after leave

43.7 Upon the ending of pregnancy, adoption or parental leave of an employee, the terms of the contract of service subsisting at the time pregnancy, adoption or parental leave began shall be so resumed that the wages, duties, benefits and position of the employee are not less beneficial than those that subsisted before the pregnancy, adoption or parental leave began.

Effect of leave on benefits

43.8 Unless an employer and employee otherwise agree, the period of pregnancy, adoption or parental leave does not count towards the application of the rights, benefits and privileges conferred by this Act upon an employee, but the period worked upon resumption of employment after pregnancy, adoption or parental leave shall be considered for the purpose of this Act, to be continuous with the period worked before the pregnancy, adoption or parental leave.

Employee may not be dismissed

43.9 (1) An employer shall not dismiss an employee or give notice of dismissal to an employee

(a) for the reason only that the employee informs the employer that she is pregnant or the employee intends to take pregnancy, adoption or parental leave; or

(b) because of absence by reason of pregnancy, adoption or parental leave permitted by this Part.

(2) Where an employee is dismissed by his or her employer contrary to subsection (1), the onus of proving that the reason for dismissal is unrelated to pregnancy, adoption or parental leave rests with the employer.

PART VII.1
BEREAVEMENT AND SICK LEAVE

Bereavement and sick leave

43.10 (1) An employee, having been employed under a contract of service with the same employer for a continuous period of at least 1 month, shall be granted by his or her employer a period of bereavement leave consisting of 1 day paid leave and 2 days unpaid leave in the event of the death of the spouse, a child, the mother, father, a brother or sister, a grandparent or a mother-in-law, father-in-law, brother-in-law or sister-in-law of the employee.

(2) An employee, having been employed under a contract of service with the same employer for a continuous period of 6 months and upon providing a certificate of a qualified medical practitioner, shall be granted by his or her employer a period of 5 days unpaid sick leave in a year.

(3) An employer shall not dismiss an employee or give notice of dismissal to an employee because of absence by reason of bereavement leave or sick leave permitted by this section.

(4) Where an employee is dismissed by his or her employer contrary to subsection (3), the onus of proving that the reason for dismissal is unrelated to the employees absence from work on bereavement leave or sick leave rests with the employer.

PART VII.2
TRAVEL COSTS

Travel costs from remote sites

43.11 Where an employer terminates the employment of an employee or lays off an employee who was employed by the employer at a remote site, the employer shall provide transportation for the employee without cost to the employee to the nearest point at which regularly scheduled transportation services are available.

14. (1) Subsection 51(1) of the Act is amended by adding immediately after the words "where a period of notice" the words "of temporary lay-off or".

(2) Subsection 51(2) is repealed and the following substituted:

(2) An agreement respecting a period of notice of termination of employment referred to in subsection (1) is effective only if the period of notice required to be given by the collective agreement or the contract of service is the same for the employer and the employee.

15. (1) Subsections 52(1) and (2) of the Act are amended by striking out the words and figures "within the period set out in paragraph (a) or (b) of section 55" and substituting the words and figures "within the period required by paragraph 55(a) or (b)".

(2) Section 52 of the Act is further amended by adding immediately after subsection (2) the following:

(3) Notwithstanding subsections (1) and (2), the requirement that a notice shall be in writing may be waived where an employer and an employee agree to waive it.

16. Paragraph 53(1)(h) of the Act is amended by striking out the words "one month" and substituting the word and figure "30 days".

17. Paragraph 54(1)(a) of the Act is amended by striking out the words "the Tribunal" and substituting the words "an adjudicator".

18. Section 56 of the Act is repealed and the following substituted:

Provisions respecting notice

56. (1) A notice of termination of a contract of service or a notice of temporary lay-off given under this Part has no effect if the contract of service continues beyond the period of expiry specified in the notice of termination or temporary lay-off.

(2) A notice of termination of a contract of service or a notice of temporary lay-off or a notice of intention to terminate a contract of service given under this Part may be given conditionally upon the happening of a future event if the period of the notice so given is not less than the period required by this Part.

19. (1) Section 62 of the Act is amended by renumbering it as subsection 62(1).

(2) Paragraph 62(1)(b) of the Act is amended by striking out the words "in conformity with this Act".

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

(2) Where the director or an officer designated by the director conducts an investigation under paragraph (1)(b), the director or officer shall provide an affected person with the opportunity to be heard either orally, in person or represented by counsel, or by making a written submission to the director or officer.

(3) A complaint to the director may not be made after the expiry of 6 months from the happening of the event giving rise to it.

20. (1) Subparagraph 63(1)(c)(ii) of the Act is repealed and the following substituted:

(ii) if temporarily laid-off or terminated, the date of temporary lay-off or termination, and, if appropriate, the date notice of intention to terminate was given;

(2) Subsection 63(3) of the Act is repealed and the following substituted:

(3) The records required to be kept under subsection (1) shall be made available to the director, or another officer designated by the director, within 7 days of a demand served personally on the employer or 10 days from the date the demand was sent by registered mail.

(3) Paragraph 63(5)(b) of the Act is amended by striking out the words "the Tribunal" and substituting the words "an adjudicator".

21. Paragraph 66(1)(e) of the Act is amended by striking out the words "the Tribunal" where they twice occur and substituting the words "an adjudicator".

22. Section 67 of the Act is repealed and the following substituted:

Panel of adjudicators

67. (1) The Lieutenant-Governor in Council shall appoint a panel of at least 6 persons to serve as adjudicators for the purpose of this Act.

(2) Members of the panel shall be appointed for a term of 3 years and are eligible for re-appointment.

(3) A member of the panel may be removed from the panel by the Lieutenant-Governor in Council on the recommendation of the minister where the minister is satisfied that there is reason for the removal.

(4) The Lieutenant-Governor in Council may determine the rate of remuneration of the members of the panel.

(5) For the purpose of holding a hearing, an adjudicator is vested with the powers that are or may be conferred on a commissioner under the Public Enquiries Act.

(6) Except as expressly provided in this Act or the regulations, an adjudicator may regulate his or her procedure as he or she considers appropriate.

(7) Where, on the coming into force of this section, the tribunal has begun to consider, review, hear and decide upon a matter but has not given a decision, the tribunal remains seized with the matter until it gives its decision.

(8) Where, on the coming into force of this section, an application has been made to the tribunal but the tribunal has not begun to consider, review, hear and decide upon the matter that is the subject of the application, the application shall be considered to have been referred to the minister.

23. (1) Subsection 68(1) of the Act is amended by striking out the words "the Tribunal" and substituting the words "an adjudicator".

(2) Subparagraph 68(1)(a)(iii) of the Act is repealed and the following substituted:

(iii) the minister upon receiving a request to do so from a person alleging a breach by an employer or employee of a provision of Parts I to IX or a regulation, and

(3) Section 68(2) of the Act is repealed and the following substituted:

(2) An adjudicator shall consider, review, hear and decide upon a matter not later than 1 year from the date the matter is referred to him or her under subsection 69(1), (2) or (3).

(4) Section 68 is further amended by adding immediately after subsection (2) the following:

(3) Notwithstanding subsection (2) as it reads at present, where a matter was referred to the tribunal within the 3 year period contained in subsection (2) as it read prior to the coming into force of the present subsection (2) and the tribunal had not considered, reviewed, heard and decided upon the matter prior to the expiry of the 3 year period, the rights of the complainant are preserved and the tribunal shall consider, review, hear and decide upon the matter as if the 3 year period had not expired.

24. (1) Subsection 69(1) of the Act is amended by striking out the words "the Tribunal" and substituting the words "the minister".

(2) Section 69 of the Act is amended by adding immediately after subsection (1) the following:

(1.1) An application to the minister under subsection (1) may not be made after the expiry of 6 months from the happening of the event giving rise to it.

(3) Subsection 69(2) of the Act is amended

(a) by striking out the words "the Tribunal" where they first occur and substituting the words "an adjudicator appointed by the minister for that purpose"; and

(b) by striking out the words "the Tribunal" where they next occur and substituting the words "an adjudicator".

(4) Section 69 of the Act is further amended by adding immediately after subsection (2) the following:

(2.1) Where the director submits a complaint or a question arising from an investigation to an adjudicator appointed for that purpose by the minister, the director shall not be considered to be acting on behalf of a complainant in doing so.

(5) Subsection 69(3) is amended by striking out the words "the Tribunal" and substituting the words "the minister".

(6) Subsection 69(4) of the Act is repealed and the following substituted:

(4) Where an application for review under subsection (3) relates to the payment by the applicant of wages, tips or gratuities or surcharges instead of tips or gratuities due to an employee under this Act, the applicant shall deposit with the minister at the time of making the application

(a) the amount that is determined by the director to be payable by the applicant, which shall be held in trust by the minister; or

(b) a bond or other security in a form and in an amount satisfactory to the minister,

and where the adjudicator decides that the wages, tips or gratuities or surcharges instead of tips or gratuities are payable to the employee, the sum, bond or other security so deposited shall, after the expiry of the period provided for in section 72 for appeal, be applied by the minister towards the satisfaction of an order made by the adjudicator.

25. (1) Subsection 70(1) of the Act is amended by striking out the words "The Tribunal" and substituting the words "The adjudicator" and by striking out the words "the Tribunal" and substituting the words "the adjudicator".

(2) Subsection 70(2) of the Act is amended by striking out the words "The Tribunal" and substituting the words "The adjudicator".

(3) Subsection 70(3) of the Act is amended by striking out the words "The Tribunal" and substituting the words "The adjudicator".

(4) Subsection 70(4) of the Act is repealed and the following substituted:

(4) The adjudicator shall communicate his or her decision and an order made by the adjudicator under this section to the minister and the employer and employee affected by the decision or order.

26. Section 71 of the Act is repealed and the following substituted:

Adjudicator's appointment continued

71. Notwithstanding section 67, where an adjudicator has begun to consider, review, hear and decide upon a matter that has been referred to him or her and the appointment of the adjudicator expires before he or she gives a decision, the appointment of the adjudicator, for the purpose of deciding upon that matter, shall be considered to have been extended and the adjudicator continues to have all the power conferred by this Act to consider, review, hear and decide upon that matter.

27. (1) Subsection 72(1) of the Act is repealed and the following substituted:

Appeal from adjudicator

72. (1) The director or a person affected and aggrieved by an order, finding or decision of an adjudicator may, within 30 days of the date of the communication made under subsection 70(4) appeal from it on a point of law or mixed fact and law to a judge of the Trial Division.

(1.1) Where the director appeals from a decision of an adjudicator under subsection (1), the director shall not be considered to be acting on behalf of a complainant in doing so.

(2) Subsection 72(2) of the Act is amended by striking out the words "or agent".

(3) Paragraph 72(3)(b) of the Act is amended by striking out the words "the Chairman of the Tribunal" and substituting the words "the adjudicator and the minister".

(4) Subsection 72(4) of the Act is repealed and the following substituted:

(4) An adjudicator shall produce before the judge prior to the hearing all papers and documents in his or her possession and affecting the matter of the appeal.

(5) Paragraph 72(5)(a) of the Act is amended by striking out the words "the Tribunal" and substituting the words "the adjudicator".

28. (1) Paragraph 73(1)(a) of the Act is amended by striking out the words "the Tribunal" and substituting the words "the minister".

(2) Paragraph 73(1)(b) of the Act is amended by striking out the words "the Tribunal" and substituting the words "an adjudicator".

(3) Subsection 73(4) of the Act is repealed and the following substituted:

(4) A copy of an order made by an adjudicator and certified by the adjudicator, with an affidavit of service of the order upon a person charged under this section is, in the absence of evidence to the contrary, proof that the order was made, that the contents of the order are accurate and that the order was served upon the accused.

29. Subsection 74(1) of the Act is repealed and the following substituted:

Enforcement of judge's order

74. (1) Where a person or corporation is convicted of an offence under section 73, the provincial court judge shall order the person or corporation to comply with the determination of the director or a designated officer or the order of an adjudicator or immediately to ensure that the determination of the director or designated officer or the order of the adjudicator is carried out immediately.

30. Section 79 of the Act is repealed and the following substituted:

Proof of service

79. Where a written notice, direction, order, determination or other document is required or permitted by this Act to be served or sent to a person, production of an affidavit of personal service or a receipt from the postal authority that the notice, direction, order, determination or document was left at a post office for delivery by registered mail is, in the absence of evidence to the contrary, proof that the notice, direction, order, determination or document was served on or delivered to the person to whom it was addressed.

31. The Act is further amended by adding immediately after section 79 the following:

Calculation of wages owing

79.1 (1) Where

(a) the director makes a determination under paragraph 62(c); or

(b) an adjudicator makes an order under paragraph 68(1)(b),

that unpaid wages, tips or gratuities, or surcharges paid instead of tips or gratuities, are owed to an employee, the director or adjudicator may order the employer of the employee by whom they are owed to calculate the amounts owing within the time stated in the order.

(2) Where an employer who has been ordered to calculate unpaid wages, tips or gratuities, or surcharges paid instead of tips or gratuities, fails to make the calculations within the time stated in the order, the director or an officer or another person appointed by the director or the adjudicator for the purpose may perform the calculations at the employer's expense.

(3) An employer shall pay all the expenses related to a calculation made under subsection (2) and where the employer fails to pay the expenses, they may be recovered by the director in a court as a debt due the Crown.

Commencement

32. Sections 1, 17, subsections 19(3) and 20(3), sections 21 and 22, subsections 23(1), (2) and (3), and sections 24 to 28 come into force on a day to be proclaimed by the Lieutenant-Governor in Council.

©Earl G. Tucker, Queen's Printer