Revised Statutes of Newfoundland 1990 Chapter I-4

(d) "employee" means a person who is in receipt of or entitled to wages for labour done or services performed for an employer, whether the labour is done or the services are performed on the premises of the employer or elsewhere and whether the wages are on the basis of time or of the amount of labour or service done or performed or piece work;

(e) "employer" includes a person, partnership, firm or association who by himself or herself or through an agent or representative is engaged in an industry and is directly or indirectly responsible for the payment of wages to an employee;

(f) "industry" includes a business, calling, trade, undertaking or work of any nature and a branch or combination of them;

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

(h) "officer" means an industrial standards officer appointed under this Act;

(i) "schedule" means a schedule of wages and hours and days of labour formulated or amended under this Act and includes a new schedule substituted for another schedule;

(j) "wages" includes a form of remuneration for labour done or services performed and includes payment at an hourly, daily, weekly, fortnightly, monthly or semi-monthly rate or for overtime or on a production basis at a piece-work or unit-price rate; and

(k) "zone" means a zone defined for an industry by the minister or in a schedule for the purposes of this Act and the regulations.

RSN1970 c170 s2; 1973 No34 Sch B; 1977 c29 s3; 1984 c40 Sch B; 1989 c25 Sch B

3. (1) The Lieutenant-Governor in Council may appoint 1 or more persons as industrial standards officers to assist in carrying out this Act, the regulations and the schedules.

(2) An officer has those powers that are conferred upon him or her under this Act and shall perform those duties that are imposed upon him or her under this or another Act or by the Lieutenant-Governor in Council, the minister or the deputy minister.

(3) An officer may conduct inquiries and investigations respecting all matters which come within the scope of this Act and the regulations and for those purposes has all of the powers, rights and privileges which may be conferred upon a commissioner under the Public Inquiries Act.

(4) An officer may, for the purpose of determining whether this Act or the regulations or a schedule is being violated, at reasonable hours enter the premises where an industry is being carried on and make an inspection.

(5) An employer or employee who is on the premises where an officer is making an inspection under subsection (4) shall give the officer the assistance that he or she may require for the purpose of making the inspection.

(6) A person who

(a) is required to assist an officer and refuses or fails to assist him or her; or

(b) obstructs an officer,

in making an inspection under subsection (4) is guilty of an offence and liable on summary conviction to a fine of not more than $100 or in default of payment to imprisonment for a term of not more than 1 month.

RSN1970 c170 s4

4. (1) The minister may define the whole or 1 or more parts of the province as a zone for an industry for the purposes of this Act and the regulations.

(2) The representatives of employers and employees in an industry may in a conference enlarge, reduce or divide into separate zones and redefine an area defined as a zone under subsection (1) or in a schedule and, where the minister gives his or her approval, the area as enlarged, reduced or divided is considered to be the defined zone for that industry and the schedule which applied in the zone before shall apply in the zone after the enlargement, reduction or division.

RSN1970 c170 s5

5. (1) The minister may, upon the petition of representatives of employers or employees in an industry in

(a) a zone defined or redefined under section 4 or in a schedule; or

(b) an area of the province which has not been defined as a zone,

convene or authorize an officer to convene a conference of the employers and employees in the industry in the zone or area for the purpose of investigating and considering the conditions of labour and the practices prevailing in the industry and for negotiating with respect to the matters referred to in section 6.

(2) The minister shall publish in 1 or more issues of a newspaper published or circulating in the zone or area in respect of which a conference is to be convened a notice of the conference at least 2 weeks before the date fixed for the conference.

RSN1970 c170 s6

6. (1) A conference may formulate and submit in writing to the minister a schedule of wages and hours and days of labour for the industry affected.

(2) A schedule shall specify the industry and define the zone in which it is to apply and may

(a) establish the regular days in the week for the performance of labour in the industry;

(b) establish a particular day or a particular portion of a day on which work may not be performed without a permit and authorize the advisory committee to issue permits subject to the terms and conditions of the schedule;

(d) prescribe the hours of the day during which work may be performed;

(e) establish the maximum number of hours which shall comprise the regular working week;

(f) establish the minimum rates of wages for regular working periods;

(g) establish the minimum rates of wages and the periods for and the conditions governing overtime work;

(h) prohibit overtime work without a permit and authorize the advisory committee to issue permits subject to the terms and conditions of the schedule;

(i) specify days which shall be observed as holidays with pay;

(j) classify the employers or employees or both and separately provide for each classification with respect to the matters that may be dealt with in the schedule;

(k) define a term used in the schedule;

(l) specify the particular operations that are included in the industry;

(m) authorize the advisory committee to fix a minimum rate of wages lower than the rate fixed by the schedule for a classification of employees or for an individual

(i) who performs work included in more than 1 classification of employees,

(ii) whose work is only partly subject to the schedule, or

(iii) who is handicapped; and

(n) establish what number or proportion of the employees of an employer affected by the schedule may be apprentices, learners or inexperienced employees or part-time employees.

(3) Where the advisory committee fixes a minimum rate of wages lower than the rate fixed by the schedule that lower rate shall be considered to be the rate fixed by the schedule.

RSN1970 c170 s7

7. (1) Where the minister is satisfied that a schedule which has been formulated and submitted by a conference has been agreed to in writing by a proper and sufficient representation of the employers and employees in the industry and zone specified in the schedule, the minister may approve the schedule and recommend it to the Lieutenant-Governor in Council for approval and the Lieutenant-Governor in Council may by order approve the schedule and declare it to be in force from the date of the order or another date that may be fixed in and by the order during pleasure or until the day prescribed in the order or the schedule as the day on which it shall cease to apply.

(2) While a schedule is in force it is binding upon the employees in the industry and zone specified and upon the employers of those employees.

(3) A majority of the employers or employees to whom the schedule relates may apply in writing to the minister to have the schedule amended or declared to be no longer in force or revoked and a new schedule substituted for that schedule.

(4) Where the minister receives an application under subsection (3), the minister or an officer who the minister may authorize for the purpose may fix a day, time and place for and may convene a conference to inquire into the circumstances of the application and in a manner that the minister or the officer considers appropriate give to the employers and employees to whom the schedule relates notice of the conference and of the day, time and place fixed for the conference.

(5) At the day, time and place fixed by the minister or the officer under subsection (4) for a conference or at a postponed day and time which the minister or officer may fix, the minister or the officer shall proceed with the inquiry in a manner that the minister or officer may consider appropriate.

(6) After a conference, where, in the opinion of the minister, it is appropriate to do so, the minister shall recommend to the Lieutenant-Governor in Council that the schedule be amended or that it be declared not to be in force or that it be revoked and a new schedule substituted for the schedule.

(7) Where a schedule has been in force for 3 years and a conference has not been convened under subsection (4) the minister may, where the minister considers it appropriate, recommend to the Lieutenant-Governor in Council that the schedule be declared not to be in force.

(8) Upon receiving a recommendation from the minister under subsection (6) or (7) the Lieutenant-Governor in Council may, by order,

(a) amend the schedule in the manner recommended;

(b) declare the schedule to be no longer in force; or

(9) An order made under subsection (8) shall come into force on the day on which it is made or on another date that may be fixed by the order and,

(a) where the order amends a schedule, the schedule as amended shall continue in force in accordance with the order made under subsection (1); or

(b) where the order revokes a schedule and substitutes a new one, the new one shall be in force during pleasure or until the day prescribed in the order or the new schedule as the day on which it shall cease to apply.

(10) An order made by the Lieutenant-Governor in Council

(a) under subsection (1), together with the schedule approved by the order;

(b) under subsection (8), together with the amendment to a schedule or the new schedule approved by the order; or

shall be published in the Gazette and in a newspaper published or circulating in the zone to which the order applies and, notwithstanding another provision of this section, the order is not in force until it has been published.

RSN1970 c170 s8

8. An employer who is bound by a schedule shall post a copy of the schedule in a conspicuous place so that those employees who are affected by the schedule can easily see and read it and the employer shall keep the schedule posted while it is in force.

RSN1970 c170 s9

9. An employer who is bound by a schedule shall keep records which shall contain sufficient information and be sufficiently accurate to provide information which may be required under section 10 and in particular those records shall include

(a) the name, address and age of each employee;

(b) the duties performed by each employee;

(d) the rate of wages per hour, day, week or other period of each employee; and

(e) an agreement with the employees in relation to wages, hours of work or working conditions.

RSN1970 c170 s10

10. (1) An officer may request an employer who is bound by a schedule to provide and the employer shall within 10 days after receiving the request provide to the officer a statement under oath or affirmation providing for the officer the information referred to in paragraphs 9(a) to (e) together with other information that the officer may request respecting working conditions.

(2) An officer may request an employer who is bound by a schedule to produce and the employer shall produce for inspection by the officer at the time and place designated by the officer and shall, where the officer so requests, provide the officer with a copy of or an extract from the records which provide information about the working conditions under which the employees affected by the schedule perform their duties and in particular, time-books, registers, pay-rolls, attendance records, time records, contracts of employment and other records kept under section 9.

RSN1970 c170 s11

11. The minister or an officer with the approval of the minister may, subsequent to the approval of a schedule under section 7, convene a conference of employers and employees bound or affected by the schedule for the purpose of investigating or considering the conditions of work and the practices prevailing in the industry to which the schedule applies and for negotiating with respect to the matters referred to in subsection 6(2) and sections 6 and 7 apply with the necessary changes to those negotiations and to a schedule which is approved by the minister as result of the conference.

RSN1970 c170 s12

12. (1) A conference of the employers and employees in a zone or group of zones to which a schedule applies may appoint an advisory committee for that zone or group of zones.

(2) An advisory committee shall consist of not less than 4 members and shall be equally representative of the employers and employees who are in the zone or group of zones for which the advisory committee is appointed and to whom the schedule applicable in the zone or group of zones applies.

(3) The members of an advisory committee shall elect a chairperson and a secretary of the committee from their own membership.

(4) An advisory committee may

(a) hear complaints of employers or employees to whom the schedule applies;

(b) generally assist in carrying out this Act and the regulations and the schedule which applies to the zone or group of zones for which the committee has been appointed;

(d) fix the quorum and procedure for meetings of the advisory committee.

(5) Within 1 week after each meeting of an advisory committee the secretary of the committee shall send to the minister a copy of the minutes of that meeting in which shall be recorded the proceedings and decisions of the committee and the copy of the minutes shall be signed by the secretary and certified by the chairperson of the meeting.

(6) An employer or employee who is aggrieved by a decision of an advisory committee may appeal from that decision to the minister who may hear and determine the appeal and the minister's decision is final and binding on the employer and the employee.

RSN1970 c170 s13

13. For the purposes of this Act a person who is engaged in an industry is, in so far as that person personally performs work in the industry, considered to be an employee and, in so far as that person employs another person or is the proprietor of a shop or business either alone or in partnership with another person, is considered to be an employer, notwithstanding that that person may become both an employer and an employee or may become an employer for 1 purpose and an employee for another purpose or that his or her status may be changed from time to time.

RSN1970 c170 s14

14. The minister may investigate and inquire into a partnership or association and, where the minister considers that the partnership or association is being used for the purpose of defeating this Act, the regulations or a schedule, the minister may by written notice declare each partner or member of the partnership or association to be an employee and that partner or member or each of them is considered to be an employee for the purposes of this Act, the regulations and the schedule.

RSN1970 c170 s15

15. The Lieutenant-Governor in Council may make regulations

(a) to define a trade or occupation;

(b) exempting industries, businesses, callings, trades, undertakings or works which may be defined in the regulations from the application of this Act;

(d) generally, to give effect to the purpose of this Act.

RSN1970 c170 s16

16. (1) An employer shall not

(a) pay to an employee or offer to pay to an employee or prospective employee wages in an amount which is less than that established as the minimum rate of wages for regular working periods or the minimum rate of wages for overtime work to which the employee is entitled under the schedule applying to the industry in which the employer and employee are engaged;

(b) require or permit an employee to work a greater number of hours in a day or week or a greater number of days in a week than the hours or days fixed by the schedule applying to the industry in which the employer and employee are engaged; or

and an employer who violates paragraph (a), (b) or (c) is guilty of an offence and liable on summary conviction,

(d) for a 1st conviction, to a fine of not less than $25 and not exceeding $100 and in default of payment to imprisonment for a term not exceeding 3 months; and

(e) for a subsequent conviction, to a fine of not less than $50 and not exceeding $500 and in default of payment to imprisonment for a term not exceeding 6 months.

(2) Where an employer is convicted of an offence under subsection (1), a Provincial Court judge shall, in addition to imposing the penalty set out in that subsection, order the employer to pay to the employee an outstanding difference between the wages actually paid to the employee and the wages payable according to the relevant schedule, and that order shall be enforceable against the employer in the same manner as a judgment of the Provincial Court judge in a civil action, but the right of an employee to take another proceeding for recovery of the amount of money to which the employee is entitled under this Act is not barred except by satisfaction of that amount.

(3) For the purposes of subsection (2), a Provincial Court judge has jurisdiction to make the order referred to in that subsection, notwithstanding the amount of money involved.

(4) An employer who is convicted of an offence under subsection (1) shall

(a) give the employee the holidays with pay, to which the employee is entitled; or

(b) with the consent of the employee, make payment, to the employee, of the amount instead of holidays with pay to which the employee is entitled,

and, for the purposes of paragraph (b), where, during the proceedings before the Provincial Court judge, the employee requests the payment instead of holidays referred to in that paragraph, the consent referred to in that paragraph shall be presumed to be given and the Provincial Court judge shall order the payment to be made, and the provisions of subsections (2) and (3), with the necessary changes, shall apply to that order.

(5) Where, because of an employer's failure to keep records according to section 9 or for another reason, the Provincial Court judge finds it difficult or impossible to calculate the outstanding difference referred to in subsection (2) or the amount instead of holidays referred to in subsection (4) without availing of the provision set out in this subsection, the Provincial Court judge may, for the purpose of making an order under subsection (2) or (4), calculate that outstanding difference or amount instead of holidays upon consideration of a determination of an officer made under section 21 and upon consideration of the claim of the employee, or the Provincial Court judge may, where there is no determination, calculate the outstanding difference or amount instead of holidays upon consideration of whatever evidence is available to the Provincial Court judge, and that calculation shall be valid for the purposes of an order under subsection (2) or (4).

(6) Section 737 of the Criminal Code shall not be applied in disposing of a prosecution for an offence under this section.

RSN1970 c170 s17; 1979 c35 Sch B; 1981 c82 s4

17. Where, in a proceeding under this Act, a dispute arises as to

(a) whether an employer has paid to an employee wages according to; or

(b) the classification of an employee under

the relevant schedule, the burden of proof is on the defendant.

RSN1970 c170 s18

18. An employee shall not

(a) agree or consent to be employed for wages in an amount which is less than that established as the minimum rate of wages for regular working periods or the minimum rate of wages for overtime work to which the employee is entitled under the schedule applying to the industry in which the employee and his or her employer are engaged;

(b) work or agree to work a greater number of hours in a day or week or a greater number of days in a week than the hours or days fixed by the schedule applying to the industry in which the employee and the employer are engaged; or

and an employee who violates paragraph (a), (b) or (c) is guilty of an offence and liable on summary conviction to a fine not exceeding $25 and in default of payment to imprisonment for a term not exceeding 10 days.

RSN1970 c170 s19

19. A person who contravenes this Act or the regulations is guilty of an offence and liable on summary conviction, where no other penalty is provided, to a fine of not more than $100 and in default of payment to imprisonment for a term of not more than 30 days.

RSN1970 c170 s20

20. (1) A prosecution under this Act shall not be taken except with the prior written consent of the minister.

(2) A prosecution under this Act shall not be started later than 2 years after the alleged offence was committed.

RSN1970 c170 s21; 1978 c12 s1

21. (1) Where an officer finds that an employer has failed to pay an employee wages to which the employee is entitled under a schedule the officer may determine the amount of the wages that the employer has failed to pay to the employee and, where the amount is agreed to in writing by the employer, the employer shall, within 7 days after the day on which the employer agreed to the amount, transmit the amount to the deputy minister, who shall pay it to the employee.

(2) Where the employer obtains the prior written approval of the officer, the employer may, within the period of 7 days referred to in that subsection, pay directly to the employee the amount of wages determined by the officer under that subsection.

(3) Where direct payment to an employee is made under subsection (2), the employer shall, within 10 days after the day on which the employer agreed to the amount of payment under subsection (1), transmit to the deputy minister proof of the direct payment, and the proof shall consist of

(a) a sworn or affirmed statement signed by the employer setting out the amount and date of the direct payment;

(b) a receipt signed by the employee evidencing the direct payment and bearing the date it was so signed; or

(c) a cancelled cheque endorsed by the employee in a manner as to indicate that the amount represented by the cheque is the direct payment made under this section.

(4) Where

(a) an employer referred to in subsection (1) pays the amount of money referred to in that subsection in accordance with that subsection or in accordance with subsection (2); and

(b) the Minister of Justice, upon the recommendation of the minister, so directs

the employer is not liable to prosecution under this Act for the employer's original failure to pay to the employee concerned the amount of the wages covered by the payment.

(5) The deputy minister shall keep a record of money paid to the deputy minister by employers and paid by the deputy minister to employees under subsection (1) and shall preserve all statements, receipts and cheques transmitted to the deputy minister under subsection (3).

(6) Where money received by the deputy minister on behalf of an employee has not been paid to the employee because of the fact that the deputy minister has been unable to ascertain the whereabouts of the employee and the employee does not claim it within a period of 2 years from the date of the receipt by the deputy minister, the money shall be paid into the Consolidated Revenue Fund.

1971 No19 s2; 1973 No34 Sch B

22. An employee to whom an employer has paid wages at a rate less than the minimum rate established by a schedule applicable to the employee and his or her employer may in addition to another remedy sue for and recover as a debt from the employer a sum equivalent to the difference between the wages the employee actually received from his or her employer and the wages the employee would have received from his or her employer if the employee had been paid in accordance with the minimum rate except to the extent of money paid or ordered to be paid by the employer to or in respect of the employee under section 16.

RSN1970 c170 s23

23. (1) A provision regarding wage rates, hours of labour or other working conditions contained in a schedule which is less favourable to an employee than a provision applicable to that employee contained in Part IV of the Labour Standards Act or in another Act or an order or regulation made under another Act shall be superseded by the Labour Standards Act or other Act or an order or regulation made under the other Act in so far as that employee is concerned.

(2) In the event of a conflict between the Apprenticeship Act and this Act, the Apprenticeship Act shall prevail.

RSN1970 c170 s24; 1977 c52 s78

24. This Act does not apply to persons employed by

(a) the government of the province or the departments of the government; or

(b) a board or commission created by an Act of the Legislature.

RSN1970 c170 s25