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Copyright 2000: Queen’s Printer,
St. John's, Newfoundland and Labrador, Canada

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Revised Statutes of Newfoundland 1990


CHAPTER L-2

AN ACT TO PROVIDE UNIFORM MINIMUM STANDARDS OF CONDITIONS OF EMPLOYMENT IN THE PROVINCE

Analysis

1. Short title

2. Definitions

3. Conditions

4. Preferential conditions

5. Statutory deductions

6. Continuation of employment

PART I
VACATIONS WITH PAY

7. Definitions

8. Annual vacation with pay

9. Vacation pay

10. Time of payment

11. Excess vacation

12. Where notice of termination given

13. Regulations

PART II
PUBLIC HOLIDAYS

14. Meaning of "public holiday"

15. Public holidays

16. Additional day instead

17. Consent of employer and employee

18. Services in the public interest

19. Some employees excluded

20. Limiting public holidays

PART III
HOURS OF WORK

21. Definitions

22. Day of rest

23. Daily maximum hours

24. Rest periods

25. Overtime

26. Regulations

PART IV
MINIMUM WAGE

27. Investigation by the board

28. Regulations

29. Handicapped employees

30. Duty to review

31. Payment of minimum wage

PART V
WAGE PROTECTION

32. Meaning of "bank"

33. Payment of wages

34. Place and time of payment

35. Particulars to be provided

36. Illegal provisions

37. Priority of claims

PART VI
TIPS OR GRATUITIES

38. Tips or gratuities

PART VII
MATERNITY LEAVE

39. Definitions

40. Notification of pregnancy

41. Maternity leave

42. Resumed contract following leave

43. Benefits during maternity leave

PART VIII
ADOPTION LEAVE

44. Adoption leave

PART IX
EMPLOYMENT OF CHILDREN

45. Meaning of "child"

46. Employment of children

47. Regulations

48. Consent of parent or guardian

PART X
NOTICE OF
TERMINATION

49. Interpretation

50. Temporary lay-off becomes termination

51. Collective agreements and written contracts of service

52. No termination without notice

53. Notice unnecessary

54. Notice unnecessary

55. Period of notice

56. Provisions re notice

57. Provisions relating to redundancy

58. Regulations

PART XI
ADMINISTRATION

59. Labour Standards Board

60. General powers of board

61. Director of Labour Standards

62. Powers of director

63. Records to be kept

64. Powers of entry, interview and inspection

65. Unpaid Wages Account

66. Regulations

PART XII
ENFORCEMENT

67. Labour Standards Tribunal and powers

68. Powers of tribunal

69. Application for order of tribunal

70. Hearing by tribunal

71. Tribunal continued

72. Appeal

73. Offence and penalty

74. Order to be implemented

75. Application of Summary Proceedings Act

76. Directors, etc. of corporations

77. Civil remedies preserved

78. Discrimination

79. Documents; proof of service


Short title

1. This Act may be cited as the Labour Standards Act.

1977 c52 s1

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Definitions

2. In this Act

(a) "board" means the Labour Standards Board referred to in section 59;

(b) "contract of service" means a contract, whether or not in writing, in which an employer, either expressly or by implication, in return for the payment of a wage to an employee, reserves the right of control and direction of the manner and method by which the employee carries out the duties to be performed under the contract, but does not include a contract entered into by an employee qualified in or training for qualification in and working for an employer in the practice of

(i) accountancy, architecture, law, medicine, pharmacy, professional engineering, surveying, teaching, veterinary science, and

(ii) other professions and occupations that may be prescribed;

(c) "director" means the Director of Labour Standards appointed under section 61 and includes an officer designated by the director to implement the powers conferred by section 62;

(d) "employee" means a natural person who works under a contract of service for an employer;

(e) "employer" means a person who is a party to a contract of service with an employee;

(f) "minister" means the Minister of Employment and Labour Relations;

(g) "tribunal" means the Labour Standards Tribunal referred to in section 67;

(h) "undertaking" includes a trade, industry, occupation or business carried on by an employer; and

(i) "wage" means remuneration, salary, commission or return in a form permitted by this Act, or combination of forms, for work or services performed by an employee for an employer under a contract of service and, if the context so admits, includes payments provided for in this Act for vacation pay and holiday pay, but does not include tips and gratuities.

1977 c52 s2; 1984 c40 Sch B; 1989 c25 Sch B

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Conditions

3. A term or condition in a contract of service that confers upon an employee conditions less favourable than the rights, benefits or privileges conferred upon the employee under this Act is void and of no effect.

1977 c52 s3

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Preferential conditions

4. Nothing in this Act prevents a contract of service from conferring upon an employee terms or conditions more favourable to the employee than the rights, benefits and privileges conferred upon the employee under this Act.

1977 c52 s4

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Statutory deductions

5. All wages paid to an employee by an employer under this Act or by a regulation or order made under this Act are subject to all deductions that are required to be made from those wages under a statute of the province or of the Parliament of Canada.

1977 c52 s5

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Continuation of employment

6. Where an employer transfers, assigns or conveys the undertaking of that employer to another person or firm, and that person or firm continues the undertaking so transferred, assigned or conveyed, the continued and uninterrupted employment of the employee by the person having so acquired the undertaking shall be considered to be continuous with the period of employment with the 1st named employer, and counts as against the new employer for the regulation of the rights, benefits and privileges of the employee under this Act.

1977 c52 s6

PART I
VACATIONS WITH PAY

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Definitions

7. In this Part

(a) "annual vacation" means the vacation to which an employee is entitled under subsection 8(1);

(b) "normal working hours" means the number of hours that an employee might reasonably expect to work in the type of work in which the employee is engaged, consideration being given to

(i) this or another Act and the orders, rules and regulations made under those Acts, or

(ii) a more favourable provision of a collective agreement, contract of service or custom; and

(c) "vacation pay" means the wages to which an employee is entitled under this Part, whether or not the employee is entitled to annual vacation.

1977 c52 s7

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Annual vacation with pay

8. (1) Where

(a) an employee works for an employer at least 90% of the normal working hours in a continuous 12 month period, beginning on the date of the start of employment or upon termination of a preceding 12 month period; and

(b) the employment by that employee does not stop before the end of that 12 month period,

the employer shall permit the employee, within 10 months after the end of the continuous 12 month period, to take an annual vacation of not less than 2 weeks, and shall pay to the employee at the time provided in section 10 wages amounting to 4% of the total wages earned by that employee during the 12 month period.

(2) Where a public holiday occurs during the period of an annual vacation, the period of the annual vacation shall be lengthened by 1 working day for each public holiday.

(3) The employer shall, unless the employer and employee agree upon shorter periods, permit the employee to take the annual vacation

(a) in 1 unbroken period of 2 weeks; or

(b) in 2 unbroken periods of 1 week each,

if the employee, not later than the date on which the employee becomes entitled to the annual vacation, gives the employer written notice of the intention to take the vacation by either of the methods specified in paragraphs (a) and (b).

(4) Unless the employer and employee otherwise agree in writing, the employer shall give to the employee not less than 2 weeks' written notice of the date of the beginning of the annual vacation, and upon the notice being given, the employee shall take the annual vacation during the period specified in the notice.

1977 c52 s8

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Vacation pay

9. (1) Where subsection 8(1) does not apply, the employee is not entitled as of right to an annual vacation, but the employer shall pay to the employee, on or before the times specified in subsection (2), 4% of the total wages earned by the employee for the hours worked by the employee within the continuous 12 month period, or until the cessation of employment of the employee within the 12 month period.

(2) The sums required to be paid by the employer under subsection (1) shall be paid within 2 weeks after the termination of the continuous 12 month period, or the date of cessation of employment.

(3) Payment is not required to be made by an employer under this section unless the employee has been employed by the employer for 5 consecutive work days or more.

1977 c52 s9

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Time of payment

10. An employer shall, at least 1 day before the annual vacation, or a part of it, of an employee begins, pay to the employee the vacation pay, or a part of it, to which the employee is entitled for the period of vacation taken or given.

1977 c52 s10

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Excess vacation

11. Where an employee is permitted by the employer to take a period of vacation in excess of the annual vacation required to be given by this Part, that excess vacation does not negate in whole or in part a future annual vacation or vacation pay to which the employee may be entitled under this Part.

1977 c52 s11

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Where notice of termination given

12. (1) Where an employer or employee gives notice of termination of the contract of service, the employer shall not, unless the parties otherwise agree, require the employee to take, nor shall the employee take, a part of an annual vacation to which the employee is entitled during the period that the employee is required by the contract of service to continue in the service of the employer after the giving of the notice of termination.

(2) The employer shall, upon termination of the contract of service, pay to the employee the vacation pay to which the employee is entitled in addition to the wages properly earned by the employee for the period following the notice of termination.

1977 c52 s12

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Regulations

13. The Lieutenant-Governor in Council may make regulations for carrying out the purposes of this Part and, in particular, may make regulations establishing a system by which an annual vacation, or a part of it, with or without vacation pay, may be taken by employees during the 12 month period during which the annual vacation is accruing.

1977 c52 s13

PART II
PUBLIC HOLIDAYS

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Meaning of "public holiday"

14. (1) In this Part, "public holiday" means

(a) New Year's Day;

(b) Good Friday;

(c) Memorial Day;

(d) Labour Day;

(e) Christmas Day; and

(f) other days that may be proclaimed by the Lieutenant-Governor in Council as a public holiday for the purpose of this Act.

(2) A collective agreement within the meaning of the Labour Relations Act may make provision for holidays that differ from the public holidays described in subsection (1) and the holiday set out in the collective agreement shall be considered to be a public holiday for the purposes of applying this Part in respect of employers and employees bound by the collective agreement.

(3) A provision in the collective agreement is void if it reduces or tends to reduce the number of public holidays in a year that an employee would be entitled to under this Part.

1977 c52 s14

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Public holidays

15. (1) An employer shall not require an employee to work under a contract of service on a public holiday.

(2) An employer shall pay to an employee the wages to which the employee would be entitled for work performed during a public holiday notwithstanding that no work is performed by the employee during that public holiday.

1977 c52 s15

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Additional day instead

16. Where a public holiday falls on a day that an employee is not required to work under the contract of service, the employer shall not require that employee to work during the 1st working day immediately following the public holiday, or during another day on which the employer and the employee shall mutually agree, and subsection 15(2) applies as if the day not worked were a public holiday for that employee.

1977 c52 s16

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Consent of employer and employee

17. Notwithstanding anything contained in this Part, an employer and employee may agree that a public holiday will be a working day for that employee, and upon the employee working during that day in accordance with the terms of the contract of service, the employer shall, notwithstanding the terms of that contract, and at the option of the employee,

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

(b) permit the employee to enjoy 1 full day's holiday within 30 days after the public holiday with the same pay that the employee would be entitled to under subsection 15(2) if that day were a public holiday; or

(c) permit the employee to add to the annual vacation to which the employee is entitled under Part I 1 extra full day with the same pay that the employee would be entitled to under subsection 15(2) if that day were a public holiday.

1977 c52 s17

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Services in the public interest

18. (1) Notwithstanding section 15, an employer engaged in an undertaking that is responsible

(a) for the operation of a public utility service;

(b) for the provision of a service the continuation of which, in the opinion of the minister, is necessary or essential in the public interest; or

(c) for a service traditionally carried on without regard to Sundays or public holidays, including industrial establishments in which operations once begun normally continue without cessation,

may require an employee to fulfil the terms of the contract of service during a public holiday.

(2) Where an employee is required to work under this section during a public holiday and has so worked, the employer shall, notwithstanding the terms of a contract of service and at the option of the employee,

(a) pay to the employee twice the wages properly earned by the employee for that day under the contract of service; or

(b) permit the employee to enjoy 1 full day's holiday within 30 days after the public holiday with pay to which the employee would be entitled if that day were a public holiday for that employee.

1977 c52 s18

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Some employees excluded

19. (1) Subsection 15(2) does not apply to an employee

(a) where the public holiday occurs within 30 days following the beginning of the employee's employment with the employer;

(b) where 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 a ground permitted by this Act; or

(c) where the employee fails, without just cause or without the consent of the employer, to comply with the contract of service on the regular work day immediately preceding, and the regular work day immediately succeeding, the public holiday, or either of those work days.

(2) Section 16 does not apply to an employee whose period of employment with an employer is less than 20 hours in the week in which the public holiday occurs.

1977 c52 s19

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Limiting public holidays

20. A proclamation of a public holiday made by the Lieutenant-Governor in Council under paragraph 14(f) may be made applicable to all undertakings or the class of undertakings that may be specified in the order.

1977 c52 s20

PART III
HOURS OF WORK

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Definitions

21. In this Part

(a) "standard working hours" means the number of prescribed hours in a week for employees or a class of employees in prescribed undertakings; and

(b) "week" means a period of 7 continuous days, starting after midnight on a Saturday or other day that may be set out in the regulations for a prescribed undertaking.

1977 c52 s21

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Day of rest

22. (1) An employer shall grant to every employee a period of rest of not less than 24 consecutive hours during each week of employment.

(2) Without limiting anything contained in a statute of the province relating to specific undertakings, the rest period referred to in subsection (1) shall be a Sunday wherever possible.

(3) Subsection (1) does not apply in respect of

(a) employees vested with the power to engage, dismiss, control the working conditions of, and regulate the hours of work of, their subordinates;

(b) employees or a class of employees employed in prescribed undertakings or a part of them;

(c) employees of employers who have applied for and received from the minister a written exemption from subsection (1); or

(d) employees engaged in work of an emergency nature that necessitates immediate remedial action,

and in case of dispute in relation to employees referred to in paragraphs (a) and (d), the board shall, subject to the regulations, determine whether or not an employee is an employee to which these paragraphs apply.

(4) An exemption mentioned in paragraph (3)(c) applies only for the period and subject to those conditions, including conditions relating to accumulation of periods of rest, that the minister may set out in the written exemption.

1977 c52 s22

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Daily maximum hours

23. Except in the case of an emergency that constitutes an imminent hazard to life or property, an employer shall permit an employee to take and an employee shall take not less than 8 consecutive hours off work in each unbroken 24 hour period of employment.

1977 c52 s23

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Rest periods

24. Subject to the regulations, an employer shall permit an employee to take an unbroken rest period of

(a) 1 hour, in the case of employees employed in wholesale or retail undertakings; and

(b) 1/2 hour, in the case of all other employees,

immediately following each 5 consecutive hours employed under the contract of service.

1977 c52 s24

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Overtime

25. Where an employee works in excess of the standard working hours as permitted by this Part, the employer shall pay to the employee the rate of wages for overtime that may be set out in the regulations by prescribed formula, which may differ for different classes of employees in different undertakings or a part of them.

1977 c52 s25

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Regulations

26. The Lieutenant-Governor in Council may make regulations for the purpose of this Part

(a) fixing the number of hours in a week to comprise the standard working hours for the purpose of paragraph 21(a), and prescribing the same or different hours for employees or classes of employees employed in different specified undertakings;

(b) fixing the day when a week is to begin for a specified undertaking, or part of it, for the purposes of paragraph 21(b);

(c) fixing the maximum number of hours and days in each week to be worked by employees or classes of employees in particular specified undertakings, or a part of them;

(d) setting the minimum rates of wages for overtime referred to in section 25 to be paid to employees or classes of employees who work in excess of the standard working hours in a particular specified undertaking;

(e) exempting employees or classes or groups of employees of employers in specified undertakings or classes of undertakings from the application of all or a part of this Part;

(f) regulating periods of work in each day to be carried out by employees or groups or classes of employees working for employers in specified undertakings or classes of undertakings; and

(g) varying the rest period set out in section 24 and setting the same or different rest periods for different undertakings or groups or classes of employees in undertakings.

1977 c52 s26

PART IV
MINIMUM WAGE

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Investigation by the board

27. (1) The board may, when it considers it expedient to do so, and shall, upon the direction of the minister, investigate the terms and conditions of employment of employees in 1 or more undertakings carried on within an area of the province.

(2) Following an investigation the board may make those recommendations that it considers necessary to the Lieutenant-Governor in Council including recommendations respecting

(a) the undertakings and the areas to which minimum wages should be applied;

(b) the classifications of employees to whom minimum wages are to be applied;

(c) the minimum rates of wages for different undertakings or areas prescribed under paragraph (a) and for a classification prescribed under paragraph (b);

(d) different minimum rates of wages based on commission piece-work or work measured in any manner, whether on a time basis or not;

(e) special minimum rates of wages for any or all apprentices, domestic employees and inexperienced or handicapped employees;

(f) the maximum amount that may be deducted from a prescribed minimum wage in cases where the employer provides to the employee board, lodging, uniforms, laundry or other services; and

(g) the minimum period that should be served by an employee who is called out by the employer to serve under the contract of service on a day or the minimum wages to be paid to that employee instead of services that should otherwise be provided by the employee during that day.

1977 c52 s27

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Regulations

28. The Lieutenant-Governor in Council may make regulations to give effect, with those amendments, additions or deletions that the Lieutenant-Governor in Council may consider expedient, to recommendations made by the board under section 27.

1977 c52 s28

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Handicapped employees

29. (1) The board may, by order published in the Gazette,

(a) exempt from this Part; or

(b) fix special minimum rates of wages for

all handicapped employees or specified classes of them and where special minimum rates of wages are fixed under this provision for handicapped employees those rates may be less than the minimum rates of wages otherwise set under this Part and may differ in respect of different classes of handicapped employees or in respect of different circumstances applying to handicapped employees or classes of them.

(2) An order made under subsection (1)

(a) may be limited as to time or place or both, or limited to 1 or more specified handicapped employees;

(b) takes effect from the date of the order or other date that may be specified in the order; and

(c) may be amended or revoked in the same manner as it is made.

1977 c52 s29

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Duty to review

30. Every 2 years from the date of the coming into effect of regulations under section 28, or an order under section 29, or within a lesser period that the board considers expedient or the Lieutenant-Governor in Council directs, the board shall review the regulations and orders, and, in the case of the regulations, recommend to the Lieutenant-Governor in Council that they continue in force, be modified with those amendments, additions or deletions that may be considered expedient, or be revoked, and the Lieutenant-Governor in Council may give effect to those recommendations.

1977 c52 s30

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Payment of minimum wage

31. (1) An employer to whom a regulation made under section 28 or an order made under section 29 applies shall pay to an employee wages that are not below the rate set out in the regulations or order.

(2) An employer to whom the regulations made under section 28 applies shall post and keep posted a copy of the regulations in a conspicuous place where employees are engaged in their duties.

1977 c52 s31

PART V
WAGE PROTECTION

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Meaning of "bank"

32. In this Part, "bank" means

(a) a bank to which the Bank Act (Canada) applies; and

(b) another institution whose deposits are insured by the Canada Deposit Insurance Corporation.

1977 c52 s32

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Payment of wages

33. (1) Subject to the regulations, an employer shall, not less frequently than half monthly, pay to an employee the wages due to that employee up to a day not more than 1 week before the date of payment.

(2) Where an employee's contract of service is terminated, the employer shall pay to the employee within 1 week from the date of the termination of the contract of service the wages due to that employee up until the date of termination of that contract.

1977 c52 s33

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Place and time of payment

34. (1) An employer shall pay to an employee

(a) at the employee's place of employment within the regular working hours of the employee or another time that the employer and employee may agree;

(b) at the place of normal residence of the employee either by personal delivery or by prepaid postage addressed to the employee at that address; or

(c) by deposit to the account of the employee within the bank of the employee,

the wages to which the employee is entitled.

(2) An employer shall pay the wages to which an employee is entitled

(a) in lawful currency of Canada; or

(b) by cheque or order drawn on a bank in which the employer maintains an account.

1977 c52 s34

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Particulars to be provided

35. An employer shall provide to an employee at the time wages are paid to the employee a written statement setting out

(a) the gross amount of wages expressed in Canadian currency payable under the contract of service for the period of time in respect of which the payment is made;

(b) the relevant period referred to in paragraph (a);

(c) the rates of wages and the number of hours worked at each rate during the relevant period;

(d) the amount and purpose of each deduction made from the gross wage referred to in paragraph (a) specifying each amount and each purpose; and

(e) the net amount of wages to which the employee is entitled for the period referred to in paragraph (b),

and shall ensure that the amount paid to the employee is the amount referred to in paragraph (e).

1977 c52 s35

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Illegal provisions

36. (1) A provision in a contract of service is void and against public policy that requires an employee to purchase, lease or otherwise acquire property of the employer, or that contains conditions respecting the manner, place, time or method by which the employee is required to spend a part of the wages payable under that contract.

(2) Notwithstanding subsection (1), a contract of service may contain, as an essential condition of that contract, a provision requiring an employee to live within premises under the control of the employer, and permitting the employer to deduct from the wages payable to that employee reasonable rental payments or charges for that part of the premises so occupied.

(3) Nothing in this Part prevents an employer from deducting from the wages due to an employee sums established at law to be due by the employee to the employer.

1977 c52 s36

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Priority of claims

37. (1) Notwithstanding another Act, a person to whom unpaid wages are owing by an employer has in respect of the wages due to that person 1st priority and claim over the claims of all creditors of the employer, including claims of the Crown, to the extent of $2,000.

(2) The right conferred by subsection (1) is ineffective unless the person to whom the wages are unpaid gives written notice of his or her claim to the director and upon receiving payment of all unpaid wages from the employer, the person or, where the person is represented by another person, that person shall immediately notify the director.

(3) A notice referred to in subsection (2) may be given by one person on behalf of another person where the person on whose behalf the notice is given has authorized it to be given.

1977 c52 s37; 1986 c35 s1

PART VI
TIPS OR GRATUITIES

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Tips or gratuities

38. (1) Tips or gratuities are the property of the employee to whom or for whom they are given and shall not be withheld by the employer, notwithstanding a consent given by the employee.

(2) Where a surcharge or other charge is paid instead of a tip or gratuity, the amount paid shall be considered to be a tip or gratuity for the purpose of subsection (1).

1986 c35 s2

PART VII
MATERNITY LEAVE

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Definitions

39. In this Part

(a) "estimated date of birth" means the date estimated by the medical practitioner in a certificate issued under section 41; and

(b) "maternity leave" means the total periods of leave permitted to be taken by a female employee under this Part, or where the context so admits, the lesser periods that are permitted by this Part.

1977 c52 s38; 1985 c11 s11

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Notification of pregnancy

40. (1) A female employee who is pregnant shall, not later than 15 weeks before the estimated date of birth, notify her employer of the estimated date of birth.

(2) An employer may require an employee to take maternity leave.

1977 c52 s39

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Maternity leave

41. (1) A female employee who, having been employed under a contract of service with the same employer for a continuous 12 month period immediately preceding the estimated date of birth, provides the employer with a certificate of a medical practitioner

(a) certifying that she is pregnant; and

(b) specifying the estimated date of birth,

shall be granted maternity leave for the periods set out in subsection (2), without obligation on the part of the employer to pay for that maternity leave.

(2) The periods referred to in subsection (1) are as follows

(a) a period, not exceeding 11 weeks, preceding the estimated date of birth;

(b) a period between the estimated date of birth and the actual date of birth of the child of the employee; and

(c) a period of 6 weeks immediately following the actual date of birth of the child of the employee.

(3) An employer and employee may agree to increase or to reduce either or both of the periods referred to in paragraphs (2)(a) and (c), but where by consent of the parties either or both of those periods are reduced, the employee shall not continue or resume her duties of employment, and the employer shall not require the employee to continue or resume the duties of her employment, until the employee has acquired and submitted to the employer a certificate of a medical practitioner certifying that the continuation or resumption of employment will not in the opinion of the medical practitioner endanger the health of the employee, or of the child.

1977 c52 s40

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Resumed contract following leave

42. Upon the termination of maternity leave of an employee, the terms of the contract of service existing at the time maternity leave began shall be resumed so that the wages, duties, benefits and position of the employee are not less beneficial than those that existed before the maternity leave began.

1977 c52 s41

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Benefits during maternity leave

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

(2) 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 and requests maternity leave; or

(b) because of absence by reason of maternity leave permitted by this Part.

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

1977 c52 s42; 1986 c35 s3

PART VIII
ADOPTION LEAVE

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Adoption leave

44. (1) An employer shall grant adoption leave without pay in accordance with subsection (2) to a person who

(a) has been in the employment of the employer for a continuous period of at least 12 months immediately preceding the date of the placement of the child with the employee;

(b) submits to the employer a written application for leave at least 4 weeks before the date on which the child is placed in the home or otherwise placed in the care and custody of the employee; and

(c) submits a letter signed by the Director of Child Welfare confirming the proposed placement of a child with the employee.

(2) Adoption leave consists of a period of 17 weeks starting not earlier than 1 week before the date on which the child is placed in the home or otherwise placed in the care and custody of the employee.

(3) Notwithstanding subsection (2), an employer and employee may agree in writing to increase or reduce the period referred to in subsection (2).

(4) Where an employee is unable to comply with paragraph (1)(b), the employee shall give notice to his or her employer equivalent to the notice given to the adoptive parent by the Department of Social Services.

(5) Sections 42 and 43 apply, with the necessary changes, to adoption leave under this section.

1986 c35 s4

PART IX
EMPLOYMENT OF CHILDREN

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Meaning of "child"

45. In this Part, "child" means a person under 16 years of age.

1977 c52 s43

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Employment of children

46. An employer shall not

(a) employ a child to do work that is or is likely to be

(i) unwholesome or harmful to the child's health or normal development, or

(ii) prejudicial to the child's attendance at school or to the child's capacity to benefit from instruction given at school;

(b) employ a child to work

(i) for more than 8 hours a day,

(ii) for more than 3 hours on a school day unless a certificate covering that day has been issued under section 8 of the School Attendance Act,

(iii) on a day for a period that, when added to the time required for attendance at school on that day, totals more than 8 hours,

(iv) between the hours of 10 p.m. of 1 day and 7 a.m. of the following day,

(v) in circumstances that would prevent the child from obtaining a rest period of at least 12 consecutive hours a day, or

(vi) occupations that are prescribed as hazardous occupations or undertakings;

(c) employ a child who is under the age of 14 years unless the work is prescribed work within prescribed undertakings; or

(d) employ a child while a strike by employees or a lockout of employees by the employer is in progress.

1977 c52 s44; 1987 c41 s11

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Regulations

47. The Lieutenant-Governor in Council may make regulations for the purposes of this Part

(a) prohibiting the employment of children in an occupation or undertaking specified in the regulations;

(b) prescribing hazardous occupations or undertakings for the purposes of section 46;

(c) setting the circumstances and conditions under which children may be employed in prescribed occupations or undertakings, and setting the terms for contracts of service and prescribing conditions as to the minimum wage payable for that employment;

(d) prescribing, for the purposes of section 46, work and undertakings, or both, in which a child under 14 years of age may be employed; and

(e) exempting employers or undertakings or a class of employers or undertakings from the application of this Part or the regulations.

1977 c52 s45

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Consent of parent or guardian

48. (1) A person shall, before entering upon a contract of service with a child, obtain the written consent of the parent or guardian of that child, which shall be kept by the employer as part of the record of the employment of the child, and the age of the child shall be specified in the written consent.

(2) Where an employer of a child

(a) fails to obtain a written consent referred to in subsection (1) that specifies the age of the child; or

(b) fails to keep the written consent as part of the record of employment of the child,

the employer is guilty of an offence and liable on summary conviction to a fine of not less than $100, or more than $500 or to imprisonment for a term not exceeding 1 month, or to both a fine and imprisonment.

1977 c52 s46

PART X
NOTICE OF TERMINATION

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Interpretation

49. (1) In this Part

(a) "temporary lay-off" means a lay-off of not more than 13 weeks in a period of 20 consecutive weeks; and

(b) "termination of employment" means a lay-off of a person for a period longer than a temporary lay-off and "terminate" and "notice of termination" have corresponding meanings.

(2) For the purposes of paragraph (1)(a), a day during the period of 20 consecutive weeks for which an employee receives pay, including pay the employee receives for a public holiday occurring during that period, shall not be counted in the calculation of the 13 week lay-off period set out in paragraph (a).

1984 c29 s1

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Temporary lay-off becomes termination

50. Where an employer temporarily lays off an employee and the lay-off exceeds a temporary lay-off the employee shall, for the purposes of this Part, be considered to have been terminated at the beginning of the temporary lay-off.

1984 c29 s1

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Collective agreements and written contracts of service

51. (1) Where a period of notice of termination of employment is provided for in a collective agreement within the meaning of the Labour Relations Act or in a written contract of service between the employer and the employee that differs from the period of notice required to be given by the employer or employee under this Part, the period provided for in the collective agreement or in the contract of service is the period of notice required to be given by the employer or employee.

(2) Subsection (1) applies only where 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.

1977 c52 s47

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No termination without notice

52. (1) An employer or employee shall not terminate a contract of service unless written notice of termination is given by or on behalf of the employer or employee within the period set out in paragraph 55(a) or (b).

(2) An employer shall not temporarily lay off an employee unless written notice of the temporary lay-off is given by or on behalf of the employer to the employee within the period set out in paragraph 55(a) or (b).

1977 c52 s48; 1984 c29 s2

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Notice unnecessary

53. (1) Section 52 and subsection 57(2) do not apply where

(a) the employee has wilfully refused to obey a lawful instruction of the employer, or has committed misconduct or been so neglectful of duty that the interest of the employer is adversely affected, or has otherwise been in breach of a material condition of the contract of service that in the opinion of the tribunal hearing a complaint made under this Part warrants summary dismissal;

(b) the employer pays to the employee wages equal to the normal wages covering the period of notice that the employer would otherwise be required to give under this Part;

(c) the employee is laid off for a period not exceeding 1 week;

(d) the employee is employed for a firm non-renewable term or for a specific task, where the term or task does not exceed 12 months and the employment is not terminated before the completion of the term or task;

(e) the employee rejects an offer by the employer of reasonable alternative employment of a similar nature requiring similar skill, effort and ability that would enable the employee to earn during a similar number of working hours a total wage comparable to that earned by the employee for services rendered under the contract of service being terminated;

(f) the employee has reached the age of retirement according to the established practice of the undertaking in which the employee is employed;

(g) the employer is required to terminate the contract of service on account of

(i) destruction of or major breakdown to plant machinery or equipment, or

(ii) climatic or economic conditions that are beyond the foreseeable control of the employer and that necessitate declaration of redundancy; or

(h) the contract of service between the employer and the employee has existed for less than 1 month.

(2) For the purpose of paragraph (1)(b), "normal wages" includes the amount for overtime wages that might have been earned by the employee on the basis of the overtime practised in the period of 1 month before his or her termination of employment under his or her contract of service.

1977 c52 s49

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Notice unnecessary

54. (1) Section 52 does not apply where

(a) the employer has mistreated the employee or acted in a manner that has or might endanger the health or well-being of the employee, or has otherwise been in breach of a material condition of the contract of service that in the opinion of the tribunal hearing a complaint made under this Part warrants no notice being given;

(b) the employee pays to the employer an amount equal to the amount that the employee would normally earn under the contract of service covering the period of notice that the employee would otherwise be required to give under this Part;

(c) the employee is employed for a firm non-renewable term or for a specific task when the term or task does not exceed 12 months and the employment is not terminated before the completion of that term or task; or

(d) the contract of service between the employer and the employee has existed for less than 1 month.

(2) Where an employee terminates a contract of service without giving the notice required by this Part in circumstances not permitted by subsection (1), the employer may, with the consent of the employee, deduct from unpaid wages due to the employee the amount that the employee is permitted to pay under paragraph (1)(b), but where that consent is not given, the employer shall deposit with the director the amount in respect of which consent is not given, and the director shall determine the issue in accordance with the powers conferred on the director under this Act.

(3) For the purpose of paragraph (1)(b), "normal earnings" includes the amount for overtime wages that might have been earned by the employee on the basis of the employment of overtime practised in the month before his or her termination of employment under the contract of service.

1977 c52 s50

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Period of notice

55. The period of notice required to be given by the employer and employee under section 52 is

(a) 1 week, where the employee has been continuously employed by the employer for a period of 1 month or more but less than 2 years; and

(b) 2 weeks, where the employee has been continuously employed by the employer for a period of 2 years or more,

and for the purpose of this section, "continuously employed" includes the employment of seasonal workers who are engaged under a contract of service for 2 or more consecutive seasons of at least 5 months in each season during which the employee is occupationally engaged.

1977 c52 s51

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Provisions re notice

56. A notice of termination of employment given under this Part

(a) has no effect where the contract of service continues beyond the period of expiry specified in the notice of termination;

(b) does not include a period of vacation to which an employee is entitled under Part I during the period of the notice; and

(c) may be given conditionally upon the happening of some future event where the period of the notice so given is not less than the period required by this Part.

1977 c52 s52

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Provisions relating to redundancy

57. (1) Without limiting the provisions respecting notice of termination required to be given under this Part by an employer to each employee, where an employer intends to terminate the contracts of service of 50 or more employees within a 4 week period, the employer shall, in accordance with subsection (3), give to each employee written notice of intention to terminate the contract of service.

(2) The employer shall, for the duration of the notice period set out in subsection (3), continue to employ the employees on whom notice of intention to terminate has been served under subsection (1).

(3) The period of notice of intention to terminate the contracts of service required by subsection (1) is as follows:

(a) 8 weeks' notice of the intention when the employer intends to terminate the contracts of service of 50 or more but fewer than 200 employees;

(b) 12 weeks' notice of the intention when the employer intends to terminate the contracts of service of 200 or more employees but fewer than 500 employees; and

(c) 16 weeks' notice of the intention when the employer intends to terminate the contracts of service of 500 or more employees.

(4) Where notices of intention to terminate contracts of service are given by an employer under this section, the employer shall, immediately after the notices are given, notify the minister in writing of the number of persons to whom the notice is given and the period of notice, and shall provide the minister with the reasons for the giving of the notices.

(5) Nothing in this section prevents an employee from giving an employer notice of termination of employment under this Part.

(6) Where an employer fails to give the notices of intention to terminate the contracts of service of employees required by this section, or fails to notify the minister in accordance with subsection (4), notice of termination of employment of 50 or more employees of the employer within a 4 week period shall not be given to those employees by the employer and no action by the employer shall be taken to terminate the services of those employees.

(7) This section does not apply in respect of employees whose contracts of service have existed for less than 1 month.

1977 c52 s53

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Regulations

58. The Lieutenant-Governor in Council may make regulations for the purposes of this Part

(a) enabling employers and employees, or representatives of employers and employees, to contract periods of notice of termination that differ from the periods provided for in this Part in those undertakings that may be prescribed and for payment to employers and employees where no notices are given;

(b) exempting from section 57 those undertakings or contracts of service, or classes of undertakings or contracts of service, that may be prescribed, including seasonal undertakings of the nature prescribed, and prescribing circumstances, including impossibility or unforeseeability, in which the obligation to provide the notices of intention to terminate required by that section are not required to be given; and

(c) providing for releasing employers and employees engaged in prescribed undertakings or occupations from the obligation to give notice of termination required by this Part.

1977 c52 s54

PART XI
ADMINISTRATION

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Labour Standards Board

59. (1) There shall be a board known as the Labour Standards Board, which shall consist of not less than 3 nor more than 7 members to be appointed by the Lieutenant-Governor in Council, 1 of whom shall be designated by the Lieutenant-Governor in Council as chairperson.

(2) With the exception of the chairperson who shall be independent, the persons appointed to the board shall be equitably representative of the interests of employers and employees.

(3) The chairperson and each member of the board holds office during pleasure and shall retire after 2 years' service on the board but they are eligible for reappointment.

(4) The Lieutenant-Governor in Council may appoint, in addition to the chairperson and members of the board,

(a) an independent person to be vice-chairperson of the board to act in the place of the chairperson during the absence of the chairperson, and the person so appointed is a member of the board while so acting; and

(b) 2 persons as alternate members of the board to act on behalf of members of the board during the absence of members.

(5) The members of the board shall be paid the remuneration that the Lieutenant-Governor in Council may fix, together with reasonable expenses actually incurred in the discharge of their duties.

(6) Each member of the board shall, before acting as a member, make, sign and file with the minister an oath or affirmation in the following form before a person authorized to administer oaths or affirmations:

"I solemnly swear (affirm) that I will faithfully and impartially to the best of my knowledge, skill and ability execute and perform the office of member of the Labour Standards Board and that I will not, except in the discharge of my duties as a member of the board, disclose to a person evidence or other matters brought before the board." (Where an oath is taken, add "So help me God".).

(7) A person shall not sit as a member of the board in the hearing of a matter in which that person has an undue interest; and for the purposes of this subsection, undue interest in a matter exists

(a) where the member declares that he or she has an undue interest; or

(b) where a majority of the other members of the board resolves that the member has an undue interest.

(8) The board and each member have the powers that are or may be conferred upon a commissioner under the Public Inquiries Act, and the board may receive and accept evidence and information on oath, affidavit or otherwise that in its discretion it considers appropriate, whether or not that evidence or information would be admissible as evidence in a court of law.

(9) Except as expressly provided in this Act or the regulations, the board may regulate its procedure as it thinks appropriate.

1977 c52 s55

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General powers of board

60. (1) The board may arrange for a conference between employers and employees or their respective representatives in an undertaking for the purpose of obtaining information with respect to the prevailing rates of wages, the terms of contracts of service and conditions of employment or upon a matter or an activity referred to the board by the Lieutenant-Governor in Council or by the minister.

(2) After considering the issues raised at a conference arranged under this section and making the investigation that it considers appropriate, the board shall report to the minister or the Lieutenant-Governor in Council and make those recommendations that it considers appropriate in the circumstances.

1977 c52 s56

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Director of Labour Standards

61. There shall be appointed, as officers of the Department of Employment and Labour Relations, in the manner provided by law,

(a) a Director of Labour Standards who, in addition to carrying out the functions and duties specifically conferred upon the director under this Act, has the powers and shall carry out the duties conferred upon the director by the Lieutenant-Governor in Council; and

(b) those officers and inspectors that may be necessary for the purpose of helping the director or the board in carrying out the powers, functions and duties of the director and board under this Act or otherwise for securing the proper observance of this Act.

1977 c52 s57; 1984 c40 Sch B; 1989 c25 Sch B

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Powers of director

62. The director and other officers that may be designated by the director may under the control and supervision of the minister

(a) receive representations and complaints, or either, from or on behalf of employers, employees and other persons that this Act, or an order or regulation made under this Act, has not been or is not being complied with;

(b) investigate either on direction by or on behalf of the minister or upon representations or complaints made under paragraph (a), and, where the matter investigated or complained of relates directly or indirectly to a provision of this Act or an order or regulation made under this Act to be fulfilled by an employer or employee, may consult with the persons affected by or associated with the investigation or complaint with a view to achieving a settlement in conformity with this Act;

(c) make determinations respecting complaints received under paragraph (a) or following an investigation under paragraph (b) and immediately make written intimation of the determination to those persons determined by the director to be in breach of this Act, or regulations or orders made under this Act;

(d) accept from employers unpaid wages, tips or gratuities or surcharges paid instead of tips or gratuities due to employees and remit them to the employees;

(e) where unpaid wages, tips or gratuities or surcharges paid instead of tips or gratuities are not received by the director under paragraph (d), demand evidence that the wages, tips or gratuities or surcharges instead of tips or gratuities have been paid to each employee in accordance with a determination made and intimated; and

(f) prosecute, under the Summary Proceedings Act, offenders of this Act after having received the consent of the Minister of Justice, which consent may be general or limited to those classes of cases that may be specified in the consent.

1977 c52 s58; 1986 c35 s5

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Records to be kept

63. (1) An employer shall keep complete, continuous and accurate records setting out in respect of each employee

(a) the name, address and date of birth of the employee;

(b) the rate of wages of the employee, the number of hours worked by the employee in each day, the amount paid to the employee showing all deductions made from wages paid;

(c) the date of

(i) the beginning of the employment of the employee, and

(ii) if terminated, the date of termination and the date on which notice of termination, and where appropriate, notice of intention to terminate was given;

(d) particulars respecting the annual vacation of the employee showing the period taken, the date and the amount of wages paid under section 9;

(e) the date on which each rest period required to be given under section 22 has been given to the employee;

(f) where the employee's employment is for a fixed period or term or for a specific task, the date of expiry of that period or term or the anticipated completion date of the specific task; and

(g) those other matters, particulars and information that may be prescribed.

(2) An employer shall keep the records required to be kept under subsection (1) for a period of 4 years from the date of the last entry in the record respecting the employee.

(3) The records required to be kept under subsection (1) shall be made available to the director, or other officer that may be designated by the director, within 15 days from the date of dispatch of a demand by the director or officer to that effect by registered mail.

(4) An employer who

(a) fails to keep records required by subsection (1);

(b) knowingly makes a false entry in those records; or

(c) fails to make the records available when required to do so under subsection (3)

is guilty of an offence and liable on summary conviction to a fine of not less than $50 and not more than $500 or to imprisonment for a term of 1 month, or to both a fine and imprisonment.

(5) In a proceeding for the recovery of wages from an employer, the onus of proving that the wages were paid lies upon the employer

(a) where the employer is convicted of an offence under this section; or

(b) where the court or the tribunal having jurisdiction for the proceedings is satisfied that the employer has failed to comply with this section.

1977 c52 s59

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Powers of entry, interview and inspection

64. (1) The director, and an officer or inspector appointed under section 61, may, at reasonable times upon production of evidence of identity, enter upon the premises of an employer where it is reasonably necessary to determine compliance with this Act

(a) to inspect and examine, and take for the purpose of making copies of the records required to be kept under section 63 or a part of those records, as well as books of account and other documents and records maintained by the employer, and to make those copies; and

(b) without interfering with employees in the performance of their duties for the employer to interview the employees working within the premises entered for the purpose of obtaining facts or information concerning an employee of the employer.

(2) Where the director believes on reasonable grounds that a person has contravened this Act or regulations, the director or an officer or inspector appointed under section 61 may with a warrant issued under subsection (3) at a reasonable time enter upon the premises of an employer and may investigate, inquire into and examine the affairs of the person in respect of whom the investigation is being made and into the books, documents, correspondence and records in relation to the person.

(3) A Provincial Court judge or justice of the peace who is satisfied by information upon oath or affirmation that there are reasonable grounds for believing that there is on the premises of an employer anything that there are reasonable grounds to believe will give evidence with respect to an offence under this Act may issue a warrant authorizing the director or an officer or inspector, appointed under section 61, named in the warrant to enter and search those premises and to make those inquiries and copies of books, documents, correspondence and records that are considered necessary, subject to those conditions that may be specified in the warrant.

(4) The owner or person in charge of the premises referred to in this section and a person found there shall give the person named in the warrant reasonable help to enable the person named in the warrant to carry out his or her duties and functions under this section and shall provide the information that the person named in the warrant may reasonably require.

(5) Where an action or proceeding is taken against the director or an officer or inspector appointed or designated under this Act for anything done under this Act or the regulations, a verdict or judgment shall not be given against the director, officer or inspector where the court before which the action or proceeding is taken is satisfied that there was probable cause for the action of the director, officer or inspector and that it was not malicious.

1977 c52 s60; 1979 c38 s7; 1985 c11 s49

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Unpaid Wages Account

65. (1) For the purpose of carrying out the power conferred by paragraph 62(d), the director shall open an account known as the Unpaid Wages Account into which all money paid by employers to the director or to those officers designated by the director to receive unpaid wages from employers shall be deposited and a remittance of wages to an employee entitled to those wages shall be recorded in that account.

(2) The Unpaid Wages Account shall once in each calendar year be audited by the auditor general for the financial year immediately preceding the date of the audit.

(3) As soon as possible after crediting wages to the Unpaid Wages Account, the director shall remit the sum received to the employee in respect of whom it is paid, but if, after making all reasonable inquiries, the director is unable to ascertain the whereabouts of the employee and no claim is made by the employee for payment within a period of 2 years from the date the money was credited to the Unpaid Wages Account, the money becomes the property of the Crown and forms part of the Consolidated Revenue Fund.

1977 c52 s61

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Regulations

66. The Lieutenant-Governor in Council may make regulations

(a) prescribing books, accounts and records to be maintained by employers, and the information to be entered in records so kept in addition to or as an alternative to the information required by section 63;

(b) giving effect to the recommendations made by the board under section 60, that are consistent with this Act;

(c) providing for additional duties to be carried out by the director and officers and inspectors appointed under this Act, and conferring those additional powers that are considered necessary and appropriate for the implementation of those duties;

(d) for the purpose of paragraphs 62(b) and (d), regulating the procedure to be adopted by the director, officers or inspectors designated by the director under that section in investigating complaints and accepting wages due to or by the employees, and prescribing penalties, not to exceed 10% of sums payable by employers to employees, in circumstances where employers admit contraventions of this Act respecting the payment of wages to employees;

(e) conferring power upon the tribunal to prescribe penalties upon employers of the percentage that may be prescribed, not exceeding 10% of sums found by the tribunal to be payable by employers to employees, following a contravention of this Act respecting the payment of wages;

(f) prescribing hazardous occupations in which minors between 16 years and under 18 years shall not be employed;

(g) prescribing information to be supplied to the director by employers who consent to pay employees sums found by the director to be due to employees, including proof and time of payment;

(h) governing the Unpaid Wages Account constituted under section 65 and prescribing the form and content of it;

(i) respecting the board and the members of the board, prescribing additional powers and duties on the board or its members and fixing the remuneration, expenses and outlays to be paid to the members; and

(j) providing for a matter that is required to be prescribed under this Act.

1977 c52 s62

PART XII
ENFORCEMENT

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Labour Standards Tribunal and powers

67. (1) There shall be a Labour Standards Tribunal consisting of 3 persons to be appointed by the Lieutenant-Governor in Council, 1 of whom shall be designated by the Lieutenant-Governor in Council as chairperson.

(2) A member of the board may be a member of the tribunal.

(3) The Lieutenant-Governor in Council may appoint alternate members of the tribunal, including an alternate chairperson, to act on behalf of a member of the tribunal or the chairperson during the absence of a member or the chairperson.

(4) The chairperson and members of the tribunal hold office during pleasure and shall retire after 2 years' service on the tribunal but they are eligible for reappointment.

(5) In carrying out its functions and duties under this Act, the tribunal may hear the testimony of witnesses, which shall be given under oath or affirmation administered by a member of the tribunal.

(6) For the purposes of a hearing, the tribunal, and each member of it, is vested with the powers that are or may be conferred on a commissioner under the Public Inquiries Act.

(7) With the approval of the minister, the tribunal may, in the manner provided by law, employ the clerical, secretarial and other assistance that it may require to carry out its functions and duties, and those employees shall be paid the remuneration that the Lieutenant-Governor in Council may fix.

(8) Subsections 59(5) to (7) and (9) apply with the necessary changes to the tribunal and its members.

1977 c52 s63

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Powers of tribunal

68. (1) The tribunal may

(a) consider, review, hear and decide upon those matters falling within the scope and intent of this Act that may be referred to it by

(i) the director,

(ii) a person aggrieved by a determination of the director, or

(iii) a person alleging a breach by an employer or employee of Parts I to XI or a regulation; and

(b) make orders upon employers or employees respecting a matter referred to it under paragraph (a), including orders as to the payment of wages, tips or gratuities or surcharges instead of tips or gratuities payable to employees and orders requiring compliance with an obligation imposed upon employers or employees under this Act.

(2) The tribunal may not consider, review, hear and decide upon a matter after the expiration of 3 years from the date of the happening that gave rise to the matter.

1977 c52 s64; 1986 c35 s6

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Application for order of tribunal

69. (1) A person aggrieved and affected by the failure of an employer or employee to comply with a provision of Parts I to XI may make written application to the tribunal for an order under paragraph 68(1)(b), but no application may be made under this subsection where the question has been submitted under section 62 for the determination of the director.

(2) Without limiting the power of the director to make a determination under paragraph 62(c), the director may,

(a) following receipt of a complaint made under paragraph (a) of that section; or

(b) following an investigation made under paragraph (b) of that section,

submit the complaint or a question arising from the investigation to the tribunal for a decision and for the making by the tribunal of an order that it considers necessary or appropriate having regard to the nature of the complaint or question so submitted.

(3) A person aggrieved and affected by a determination of the director under paragraph 62(c) may, within 15 days after the date of the determination, make written application to the tribunal for a review of the determination.

(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 tribunal at the same time as the application is made

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

(b) a bond or security in a form and in an amount satisfactory to the chairperson of the tribunal,

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

1977 c52 s65; 1986 c35 s7

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Hearing by tribunal

70. (1) The tribunal may, and shall where so requested by a party affected by an application or submission made under section 69, hold a hearing at which the director and the employer and employee so affected are entitled to appear before the tribunal either personally or by representative designated to act for them for the purpose of presenting their cases and producing evidence.

(2) The tribunal shall notify the director and the employer and employee affected by the application or submission of the time and place of a hearing to be held under subsection (1).

(3) The tribunal

(a) shall hear the case submitted to it and the evidence brought forward by the director and the affected employer and employee; and

(b) after consideration of the evidence and argument, shall decide the matter of the application or submission and make the order that it considers to be appropriate in the circumstances.

(4) The tribunal shall communicate its decision and an order made by it under this section to the director and the employer and employee affected by the decision or order.

1977 c52 s66

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Tribunal continued

71. Notwithstanding section 67, where the tribunal has begun to consider, review, hear and decide upon a matter that has been referred to it and the appointment of the members of the tribunal expires before it makes a decision, the tribunal, for the purpose of deciding upon that matter, shall be considered to be composed of those members who were appointed to it when the tribunal began to consider, review, hear and decide upon that matter and the tribunal shall continue to have the powers conferred by this Act to consider, review, hear and decide upon that matter.

1983 c20 s1

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Appeal

72. (1) A person affected and aggrieved by an order, finding or decision of the tribunal 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.

(2) The notice of appeal shall be filed by the appellant or the solicitor or agent of the appellant in the Registry of the Supreme Court and shall set out the grounds of the appeal.

(3) The appellant shall

(a) within 14 days after filing of the notice of appeal, apply to a judge for the appointment of a day for the hearing of the appeal; and

(b) serve upon the chairperson of the tribunal written notice of the day appointed for the hearing which shall not be less than 14 days before the hearing.

(4) The chairperson of the tribunal shall produce before the judge before the hearing of the appeal all papers and documents in the possession of the tribunal and affecting the matter of the appeal.

(5) Except as otherwise provided in this section, the rules governing appeals to a judge of the Trial Division apply to appeals under this section and the judge hearing the appeal may

(a) uphold, rescind or vary the order of the tribunal; and

(b) make orders as to costs for or against the employer, the employee or the Crown and may fix the amount of it.

1977 c52 s67; 1986 c42 Sch B

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Offence and penalty

73. (1) A person is guilty of an offence who fails to comply with

(a) a valid determination made by the director under section 62 in respect of which no application for review has been made to the tribunal under subsection 69(3); or

(b) a valid order of the tribunal after the period of appeal as set out in section 72 has expired.

(2) A person who is guilty of an offence under subsection (1) is liable on summary conviction

(a) where the person is a natural person, to a fine of not less than $100 and not more than $500 and in default of payment to imprisonment for a term not exceeding 3 months; or

(b) where the person is a corporation, to a fine of not less than $200 and not more than $1,000.

(3) Where a person is guilty of a 2nd or subsequent offence under subsection (1) that person is liable on summary conviction to double the fine or to double the term of imprisonment provided for in that subsection and applicable in the case of that person.

(4) A copy of an order made by the tribunal and certified by a member of the tribunal 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.

1977 c52 s68

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Order to be implemented

74. (1) Where a person is convicted of an offence under section 73, the Provincial Court judge shall order that person or corporation to comply with the order of the tribunal immediately or to carry out the order of the tribunal immediately.

(2) An order made by a Provincial Court judge under subsection (1) may be enforced against the person in respect of whom it is made as if it were a judgment of the Supreme Court in a civil action and execution may follow by filing the order of the Provincial Court judge with the Registrar of the Supreme Court.

1977 c52 s69; 1979 c38 s7

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Application of Summary Proceedings Act

75. (1) Section 5 of the Summary Proceedings Act does not apply to a person who contravenes the provisions of Parts I to XI of this Act.

(2) Sections 736 and 737 of the Criminal Code shall not be applied in disposing of a prosecution for an offence under this Act.

1977 c52 s70; 1979 c35 Schs A&B

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Directors, etc. of corporations

76. Where a corporation has committed an offence under this Act, a director, officer or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is guilty of an offence and liable on summary conviction to the fine provided for a natural person under section 73 whether or not the corporation has been prosecuted or convicted.

1977 c52 s71

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Civil remedies preserved

77. Nothing in this Act prevents an employee from recovering from an employer in a court as much of the wages due to the employee under the contract of service that has not been paid by the employer.

1977 c52 s72

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Discrimination

78. (1) An employer is guilty of an offence who discharges or threatens to discharge an employee contrary to this Act, or discriminates against an employee because the employee

(a) has testified or is about to testify in a proceeding or help in an investigation made or taken under this Act;

(b) has given information to the board or to the director or an officer or inspector appointed under this Act to acquire information regarding the wages payable to that employee or other employees of the employer or the terms of the contract of service of that employee or other employees;

(c) has initiated or taken part in a proceeding, investigation or complaint initiated or made under this Act; or

(d) has been dismissed by a former employer.

(2) A person is guilty of an offence who seeks to have an employer dismiss an employee because that employee has previously been dismissed by that person.

(3) A person who is guilty of an offence under subsection (1) is liable on summary conviction, in respect of each employee to which the offence relates,

(a) to a fine of not less than $100 and not more than $1,000 or to imprisonment for a period not exceeding 3 months, or to both a fine and imprisonment where the person is a natural person; or

(b) to a fine of not less than $300 and not more than $3,000 where the person is a corporation.

(4) Where an employer is convicted of an offence under subsections (1) and (2), the court, where the offence relates to discriminatory dismissal or reduction in wages, shall in addition to another penalty imposed by this Act order the employer to pay compensation for loss of employment or reduction in wages to the employee in an amount not exceeding the amount that in the opinion of the court would be equivalent to the wages that would have accrued to the employee up to the date of conviction but for the discharge or reduction, and, in the case of the discharge of an employee, the court may order the employer to reinstate the employee under the original contract of service from the date and for the period that in the opinion of the court is appropriate.

(5) An employer who fails to comply with an order made under subsection (4) is guilty of an offence and liable on summary conviction to a fine of not less than $10 and not more than $100 for each day during which the failure continues.

(6) In addition to the penalties set out in subsection (3) the court may order that exemplary damages be paid to an employee by a person found guilty of an offence under subsection (2).

1977 c52 s73

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Documents; proof of service

79. Where a written notice, direction, order, determination or other document is required or permitted by this Act to be served, dispatched or sent to a person, production of a receipt from the postal authority that that 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 delivered to the person to whom it was addressed.

1977 c52 s74

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