122 Director’s collection notice
123 Disposition
of money received
Part 5
Offences, Procedures and Regulations
Division 1
Offences and Penalties
124 No
dismissal for garnishment proceedings
125 Discrimination
prohibitions
126 General
prohibitions
127 Premium
for employment prohibited
128 Employer
prohibitions
129 Offences
130 Specific
offences
131 Corporate
offences
132 Penalty
133 Prosecutions
Division 2
Procedural Matters
134 Non‑compellable
witness
135 Service
of documents
136 Certification
of copies
137 Employer’s duty to notify Minister of terminations
Division 3
Regulations
138 Regulation‑making
authority
Preamble
RECOGNIZING that a
mutually effective relationship between employees and employers is critical to
the capacity of Albertans to prosper in the competitive world‑wide market
economy of which Alberta is a part;
ACKNOWLEDGING that it is
fitting that the worth and dignity of all Albertans be recognized by the
Legislature of Alberta through legislation that encourages fair and equitable
resolution of matters arising over terms and conditions of employment;
REALIZING that the
employee‑employer relationship is based on a common interest in the
success of the employing organization, best recognized through open and honest
communication between affected parties;
RECOGNIZING that
employees and employers are best able to manage their affairs when statutory
rights and responsibilities are clearly established and understood; and
RECOGNIZING that
legislation is an appropriate means of establishing minimum standards for terms
and conditions of employment;
HER MAJESTY, by and with
the advice and consent of the Legislative Assembly of Alberta, enacts as
follows:
Interpretation
1(1) In this Act,
(a) “agreement”
includes a collective agreement;
(b) “average
daily wage” means
(i) for employees who have been employed by the same employer for 9
work weeks or more immediately preceding a general holiday, the employee’s
daily wage averaged over the days worked during the 9 weeks, or
(ii) for employees who have been employed by the same employer for
less than 9 work weeks immediately preceding a general holiday, the employee’s
daily wage averaged over the days worked during the employee’s employment with
the employer;
(c) “collection
notice” means a notice given by the Director under section 122;
(d) “collective
agreement” means an agreement in writing between an employer or an employers’
organization and a bargaining agent containing terms or conditions of
employment, and may include one or more documents containing one or more
agreements;
(e) “Court”
means the Court of Queen’s Bench;
(f) “daily
wage” means the wage of an employee on a normal work day;
(g) “date
of delivery” means the date when the pregnancy of an employee terminates with
the birth of a child or when the pregnancy otherwise terminates;
(h) “Director”
means the Director of Employment Standards;
(i) “Director’s
demand” means a demand by the Director under section 115 or a further demand
under section 116(3);
(j) “earnings”
means wages, overtime pay, vacation pay, general holiday pay and termination
pay;
(k) “employee”
means an individual employed to do work who receives or is entitled to wages
and includes a former employee;
(l) “employer”
means a person who employs an employee and includes a former employer;
(m) “employment
record” means the employment information required by section 14 to be kept up
to date and any other record needed to determine whether an employee is
entitled to anything under this Act;
(n) “hours
of work” means
(i) the period of time during which an employee works for an
employer, and
(ii) time off with pay instead of overtime pay provided by an employer
and taken by an employee;
(o) “maternity
and parental leave” means the rights and obligations described in Part 2,
Division 7;
(p) “medical
certificate” includes the signed statement of a physician;
(q) “Minister”
means the Minister determined under section 16 of the Government Organization Act as the Minister responsible for this
Act;
(r) “officer”
means an employment standards officer;
(s) “overtime
agreement” means an agreement between an employer and employees under section
23;
(t) “Registrar”
means the Registrar of Appeals;
(u) “termination
pay” means the pay given to an employee instead of a termination notice;
(v) “third
party” means a person to whom a Director’s demand is issued, and includes the
Crown in right of Alberta;
(w) “umpire”
means an umpire appointed under section 69;
(x) “wages”
includes salary, pay, money paid for time off instead of overtime pay,
commission or remuneration for work, however calculated, but does not include
(i) overtime pay, vacation pay, general holiday pay and termination
pay,
(ii) a payment made as a gift or bonus that is dependent on the
discretion of an employer and that is not related to hours of work, production
or efficiency,
(iii) expenses or an allowance provided instead of expenses, or
(iv) tips or other gratuities;
(y) “wage
rate” means the hourly rate of pay for wages;
(z) “week”
means 7 consecutive days;
(aa) “work”
includes providing a service;
(bb) “work
day” means a 24‑hour period ending at midnight or a 24‑hour period
as established by the consistent practice of an employer;
(cc) “work
month” means a calendar month or the period from a time on a specific day in a
month to the same time on the same day in the following month as established by
the consistent practice of an employer;
(dd) “work
week” means the period between midnight on a Saturday and midnight on the
following Saturday, or 7 consecutive days as established by the consistent
practice of an employer;
(ee) “year
of employment” means a period of 12 consecutive months.
(2) A reference to “this Act” includes a regulation
made under this Act.
RSA 2000 cE-9 s1;2001 c6
s6
Part 1
Application and Operation of this Act
Application of this Act
2(1) This Act applies to all employers and
employees, including the Crown in right of Alberta and its employees, except as
otherwise provided in this section.
(2)
Except for provisions relating to maternity and parental leave and other
provisions of this Act necessary to give effect to those provisions, this Act
does not apply to
(a) employees
who are members of a municipal police service appointed pursuant to the Police Act and their employers with
respect to the employment of those employees, or
(b) employees
and employers to the extent that another Act states that this Act or a
provision of it does not apply to them.
(3) The
following Divisions and regulations do not apply to employees and employers
specified in subsection (4):
(a) Part
2, Division 3, Hours of Work;
(b) Part
2, Division 4, Overtime and Overtime Pay;
(c)Part 2, Division 5, General Holidays and General
Holiday Pay;
(d) Part
2, Division 6, Vacations and Vacation Pay;
(e) Part
2, Division 9, Restriction on Employment of Children and regulations made under
section 138(1)(e), prohibiting or regulating the employment of individuals
under 18 years of age;
(f) regulations
under section 138(1)(d) respecting vacations, vacation pay, general holidays
and general holiday pay;
(g) regulations
under section 138(1)(f) respecting the minimum wage.
(4) The
Divisions and regulations specified in subsection (3) do not apply to employees
employed on a farm or ranch whose employment is directly related to
(a) the
primary production of eggs, milk, grain, seeds, fruit, vegetables, honey,
livestock, domestic cervids within the meaning of the Livestock Industry Diversification Act, poultry or bees, or
(b) any
other primary agricultural operation specified in the regulations,
or to their employer while acting in the capacity as
employer.
RSA 2000 cE-9 s2;2001 c6
s6;2003 c26 s19
Civil remedies and
greater benefits
3(1) Nothing in this Act affects
(a) any
civil remedy of an employee or an employer;
(b) an
agreement, a right at common law or a custom that
(i) provides to an employee earnings, maternity and parental leave or
other benefits that are at least equal to those under this Act, or
(ii) imposes on an employer an obligation or duty greater than that
under this Act.
(2) If under an agreement an employee is to receive
greater earnings or maternity and parental leave than those for which this Act
provides, the employer must give those greater benefits.
RSA 2000 cE-9 s3;2001 c6
s6
Minimum standards cannot
be avoided
4 An agreement that this Act or a provision
of it does not apply, or that the remedies provided by it are not to be
available for an employee, is against public policy and void.
1996 cE-10.3 s4
Employment deemed
continuous
5 For the purposes of this Act, the
employment of an employee is deemed to be continuous and uninterrupted when a
business, undertaking or other activity or part of it is sold, leased,
transferred or merged or if it continues to operate under a receiver or
receiver‑manager.
1996 cE‑10.3 s5
Part 2
Standards
Exemptions,
modifications and substitutions
6 Despite anything in this Act, the
regulations under section 138 may
(a) exempt
an employment, employer or employee from Part 2 or any provision of it, and
(b) modify or substitute any provision of Part 2
in respect of an employment, employer or employee.
1996 cE-10.3 s6
Division 1
Paying Earnings
Pay periods
7(1) Every employer must establish one or more pay
periods for the calculation of wages and overtime pay due to an employee.
(2) A pay period must not be longer than one work
month.
1996 cE-10.3 s7
Payment of wages,
overtime pay and general holiday pay
8(1) Wages, overtime pay and general holiday pay
earned in a pay period must be paid by an employer not later than 10
consecutive days after the end of each pay period.
(2) When employment ends, earnings must be paid by
an employer within the time described in section 9 or 10.
1996 cE-10.3 s8
Termination of
employment by employer - payment of earnings
9(1) When an employer terminates an employee’s
employment by
(a) a
termination notice under section 56,
(b) termination
pay under section 57(1) instead of a termination notice, or
(c) a
combination of a termination notice and termination pay under section 57(2),
the employer must pay
the employee’s earnings not later than 3 consecutive days after the last day of
employment.
(2) When an employer terminates an employee’s
employment and no termination notice or termination pay is required to be
given, the employer must pay the employee’s earnings not later than 10
consecutive days after the last day of employment.
1996 cE-10.3 s9
Termination of
employment by employee - payment of earnings
10(1) When an employee terminates employment by
giving a termination notice under section 58, the employer must pay the
employee’s earnings not later than 3 consecutive days after the last day of employment.
(2) When
an employee terminates employment and a termination notice is not required, the
employer must pay the employee’s earnings not later than 10 consecutive days
after the last day of employment.
(3) When an employee is required to give a termination
notice but terminates employment without doing so, the employer must pay the
employee’s earnings not later than 10 consecutive days after the date on which
the notice would have expired if it had been given.
1996 cE-10.3 s10
Ways of paying earnings
11(1) In this section, “authorized financial
institution” means a bank, treasury branch, credit union, loan corporation,
trust corporation or other corporation insured under the Canada Deposit Insurance Corporation Act (Canada).
(2) An
employee’s earnings must be paid by an employer in Canadian currency
(a) in
cash or by cheque, bill of exchange or order to pay, payable on demand, drawn
on an authorized financial institution, or
(b) if the employer so chooses, by direct
deposit to the employee’s account in an authorized financial institution of the
employee’s choice.
1996 cE-10.3 s11
Deductions from earnings
12(1) An employer must not deduct, set off against or
claim from the earnings of an employee any sum of money, unless allowed to do
so by subsection (2).
(2) An
employer may deduct from the earnings of an employee a sum of money that is
(a) permitted
or required to be deducted by an enactment or a judgment or order of a court,
(b) authorized
to be deducted by a collective agreement that is binding on the employee, or
(c) personally
authorized in writing by the employee to be deducted.
(3) Despite
an authorization in a collective agreement or a written authorization by an
employee, an employer may not deduct from earnings a sum for
(a) faulty
workmanship, or
(b) cash shortages or loss of property if an
individual other than the employee had access to the cash or property.
1996 cE-10.3 s12
Notice required before
earnings reduced
13(1) An employer must give each employee notice of a
reduction of the employee’s wage rate, overtime rate, vacation pay, general
holiday pay or termination pay before the start of the employee’s pay period in
which the reduction is to take effect.
(2) If an employer does not comply with subsection
(1), an employee is entitled to the difference between the employee’s wage
rate, overtime rate, vacation pay, general holiday pay or termination pay
before the reduction and those rates and pay after the reduction from the time
in the pay period in which the reduction was first applied to the end of that
pay period.
1996 cE-10.3 s13
Division 2
Employment Records
Records to be maintained
14(1) Every employer must keep an up-to-date record
of the following information for each employee:
(a) regular
and overtime hours of work;
(b) wage
rate and overtime rate;
(c) earnings
paid showing separately each component of the earnings for each pay period;
(d) deductions
from earnings and the reason for each deduction;
(e) time
off instead of overtime pay provided and taken.
(2) At
the end of each pay period, an employer must provide a written statement to
each employee setting out, in respect of the employee,
(a) the
information described in subsection (1), and
(b) the
period of employment covered by the statement.
(3) The
hours of work of an employee, maintained by an employer under subsection
(1)(a), must be recorded daily.
(4) An
employer must keep an up-to-date record of the following additional information
for each employee:
(a) name,
address and date of birth;
(b) the
date that the present period of employment started;
(c) the
date on which a general holiday is taken;
(d) each
annual vacation, showing the date it started and finished and the period of
employment in which the annual vacation was earned;
(e) the
wage rate and overtime rate when employment starts, the date of any change to
wage rates or overtime rates, and particulars of every change to them;
(f) copies
of documentation relating to maternity and parental leave;
(g) copies
of any termination notice and of written requests to employees to return to
work after a temporary layoff.
(5) On request, an employer must give to an
employee a detailed statement of how the employee’s earnings were calculated
and the method of calculating any bonus or living allowance paid, whether or
not it forms part of wages.
RSA 2000 cE-9 s14;2001
c6 s6
Keeping employment
records
15 Employment records must be retained by an
employer for at least 3 years from the date each record is made.
1996 cE-10.3 s15
Division 3
Hours of Work
Hours of work confined
16(1) An employee’s hours of work must be confined
within a period of 12 consecutive hours in any one work day, unless
(a) an
accident occurs, urgent work is necessary to a plant or machinery or other
unforeseeable or unpreventable circumstances occur, or
(b) the
Director issues a permit authorizing extended hours of work.
(2) If hours of work have to be extended, they are
to be increased only to the extent necessary to avoid serious interference with
the ordinary working of a business, undertaking or other activity.
1996 cE-10.3 s16
Notice of work times
17(1) Every employer must notify the employees of the
time at which work starts and ends by posting notices where they can be seen by
the employees, or by any other reasonable method.
(2) An employer must not require an employee to
change from one shift to another without at least 24 hours’ written notice and
8 hours of rest between shifts.
1996 cE-10.3 s17
Rest periods
18 Every employer must allow each employee a
total of at least 30 minutes of rest, whether paid or unpaid, during each shift
in excess of 5 consecutive hours of work unless
(a) an
accident occurs, urgent work is necessary or other unforeseeable or
unpreventable circumstances occur,
(b) different
rest provisions are agreed to pursuant to a collective agreement, or
(c) it is not reasonable for the employee to
take a rest period.
1996 cE-10.3 s18
Days of rest
19(1) Every employer must allow each employee at
least
(a) one
day of rest in each work week,
(b) 2
consecutive days of rest in each period of 2 consecutive work weeks,
(c) 3
consecutive days of rest in each period of 3 consecutive work weeks, or
(d) 4
consecutive days of rest in each period of 4 consecutive work weeks.
(2) Every employer must allow each employee at
least 4 consecutive days of rest after each 24 consecutive work days.
1996 cE-10.3 s19
Compressed work week
20(1) An employer may require or permit an employee
to work a compressed work week, consisting of fewer work days in the work week
and more hours of work in a work day paid at the employee’s regular wage rate.
(2) A
compressed work week must be scheduled in advance and the schedule must meet
the following requirements:
(a) if
the compressed work week is part of a cycle, the schedule must show all the
work weeks that make up the cycle;
(b) the
maximum hours of work that an employee may be scheduled to work in a work day
is 12 hours;
(c) the
maximum hours of work that an employee may be scheduled to work in a compressed
work week is 44 hours;
(d) if the compressed work week is part of a
cycle, clause (c) does not apply and the maximum average weekly hours of work
that an employee may be scheduled to work in the work weeks that are part of
the cycle is 44 hours.
1996 cE-10.3 s20
Division 4
Overtime and Overtime Pay
Overtime hours
21 Overtime hours in respect of a work week
are
(a) the
total of an employee’s hours of work in excess of 8 on each work day in the
work week, or
(b) an
employee’s hours of work in excess of 44 hours in the work week,
whichever is greater, and, if the hours in clauses (a) and
(b) are the same, the overtime hours are those common hours.
1996 cE-10.3 s21
Overtime pay
22(1) An employer must pay an employee overtime pay
of at least 1.5 times the employee’s wage rate for overtime hours.
(2) Subsection (1) does not apply to an employer or
employee who has entered into an overtime agreement.
1996 cE-10.3 s22
Overtime agreements
23(1) An employee or the majority of a group of
employees may enter into an overtime agreement
(a) as
part of a collective agreement, or
(b) if
there is no collective agreement, in a written agreement between the employee
or group of employees and the employer,
that provides that,
wholly or partly instead of overtime pay, the employer will provide, and the
employee or group of employees will take, time off with pay instead of overtime
pay.
(2) An
agreement referred to in subsection (1) is deemed to include at least the
following provisions:
(a) time
off with pay instead of overtime pay will be provided, taken and paid at the
employee’s wage rate at a time that the employee could have worked and received
wages from the employer;
(b) if
time off with pay instead of overtime pay is not provided, taken and paid in
accordance with clause (a), the employee will be paid overtime pay of at least
1.5 times the employee’s wage rate for the overtime hours worked;
(c) time
off with pay instead of overtime pay will be provided, taken and paid to the
employee within 3 months of the end of the pay period in which it was earned
unless
(i) the agreement is part of a collective agreement and the
collective agreement provides for a longer period within which the time off
with pay is to be provided and taken, or
(ii) the Director issues a permit authorizing an agreement that
provides for a longer period within which the time off with pay is to be
provided and taken;
(d) no
amendment or termination of the agreement is to be effective without at least
one month’s written notice given by one party to the agreement to the other.
(3) An employer must provide a copy of the overtime
agreement to each employee affected by it.
1996 cE-10.3 s23
Incentive pay - hourly
wage for calculation of overtime
24(1) If an employee is paid entirely on commission
or other incentive‑based remuneration, then, for the purpose of
calculating overtime pay, the employee’s wage rate is deemed to be the minimum
wage prescribed by the regulations.
(2) If
an employee is paid partly by salary and partly by commission or other
incentive‑based remuneration, then, for the purpose of calculating
overtime pay, the employee’s wage rate
(a) is
based on the salary component of the wages, if the salary component is greater
than the minimum wage, or
(b) is deemed to be the minimum wage, if the
salary component of the employee’s wages is equal to or less than the minimum
wage.
1996 cE-10.3 s24
Division 5
General Holidays and
General Holiday Pay
General holidays in
Alberta
25 The following days are general holidays
in Alberta:
(a) New
Year’s Day,
(b) Alberta
Family Day,
(c) Good
Friday,
(d) Victoria
Day,
(e) Canada
Day,
(f) Labour
Day,
(g) Thanksgiving
Day,
(h) Remembrance
Day,
(i) Christmas
Day,
(j) any
other day designated, by regulation, as a general holiday by the Lieutenant
Governor in Council, and
(k) any other day designated as a general
holiday under an agreement between an employer and employees, or otherwise
designated as a general holiday by an employer.
1996 cE-10.3 s25
Eligibility for general
holiday pay
26(1) An employee is eligible for general holiday pay
if the employee has worked for the same employer for 30 work days or more in
the 12 months preceding the general holiday.
(2) An
employee is not entitled to general holiday pay if the employee
(a) does
not work on a general holiday when required or scheduled to do so, or
(b) is absent from employment without the
consent of the employer on the employee’s last regular work day preceding, or
the employee’s first regular work day following, a general holiday.
1996 cE-10.3 s26
Resolving doubts about
general holiday pay entitlements
27(1) If an employee works an irregular schedule and
there is doubt about whether a general holiday is on a day that would normally
have been a work day for the employee, the doubt is to be resolved in
accordance with subsection (2).
(2) If in at least 5 of the 9 weeks preceding the
work week in which the general holiday occurs the employee worked on the same
day of the week as the day on which the general holiday falls, the general
holiday is to be considered a day that would normally have been a work day for
the employee.
1996 cE-10.3 s27
General holiday pay -
not working on a normal work day
28 If
(a) a
general holiday falls on a day that would normally have been a work day for the
employee, and
(b) an
employee does not work on the general holiday,
the employer must pay the employee general holiday pay of
an amount that is at least the average daily wage of the employee.
1996 cE-10.3 s28
General holiday pay -
working on a normal work day
29 If a general holiday is on a day that
would normally have been a work day for an employee and the employee works on
the general holiday, the employer must comply with clause (a) or (b):
(a) pay
the employee general holiday pay of
(i) an amount that is at least the average daily wage of the
employee, and
(ii) an amount that is at least 1.5 times the employee’s wage rate for
each hour of work of the employee on that day,
or
(b) provide
the employee with
(i) an amount that is at least the employee’s wage rate times each
hour of work on that day, and
(ii) one day’s holiday, not later than the
employee’s next annual vacation, on a day that would normally be a work day for
the employee, and general holiday pay for that day of an amount that is at
least the employee’s average daily wage.
1996 cE-10.3 s29
General holiday pay -
working on unscheduled work day
30 If
(a) a
general holiday is on a day that is not normally a work day for an employee,
and
(b) the
employee works on the general holiday,
the employer must pay the employee general holiday pay of
an amount that is at least 1.5 times the wage rate of the employee for each
hour of work on that day.
1996 cE-10.3 s30
General holiday during
annual vacation
31(1) If a general holiday occurs during an employee’s
annual vacation, the employer must, if the general holiday is one to which the
employee would have been entitled had the employee not been on annual vacation,
give the employee a holiday with general holiday pay of a sum that is at least
equal to the average daily wage of the employee.
(2) The
general holiday must be taken
(a) on
what would have been the employee’s first day back to work after the annual
vacation, or
(b) by agreement with the employee, on another
day after the annual vacation that would normally be a working day for the
employee, and provide it before the employee’s next annual vacation.
1996 cE-10.3 s31
Incentive pay - hourly
wage for calculating general holiday pay
32(1) If an employee is paid entirely on commission
or other incentive‑based remuneration, then, for the purpose of
calculating pay for time worked on a general holiday, the employee’s wage rate
is deemed to be the minimum wage prescribed by the regulations.
(2) If
an employee is paid partly by salary and partly by commission or other
incentive‑based remuneration, then, for the purpose of calculating pay
for time worked on a general holiday, the employee’s wage rate
(a) is
based on the salary component of the wages, if the salary component is greater
than the minimum wage, or
(b) is deemed to be the minimum wage, if the
salary component of the employee’s wages is equal to or less than the minimum
wage.
1996 cE-10.3 s32
Effect of general
holiday on overtime calculation
33 When an employee works on a general
holiday and is paid general holiday pay of at least 1.5 times the employee’s
wage rate for each hour worked, the hours worked are not to be counted for the
purpose of calculating any entitlement to overtime pay under Part 2, Division
4, Overtime and Overtime Pay, for the work week in which the general holiday
occurs.
1996 cE-10.3 s33
Division 6
Vacations and Vacation Pay
Basic vacation
entitlement
34 An employee becomes entitled to an annual
vacation of at least
(a) 2
weeks after each of the first 4 years of employment, and
(b) 3
weeks after 5 consecutive years of employment and each year of employment after
that,
unless section 35 applies.
1996 cE-10.3 s34
Vacation entitlements
with a common anniversary date
35(1) For the purpose of calculating vacation and
vacation pay, an employer may establish a common anniversary date for all
employees or a group of them.
(2) If
an employer establishes a common anniversary date, then, despite any other
provision in this Division,
(a) the
amount of vacation pay, and
(b) the
length of an employee’s vacation,
must not be reduced to
less than the employee would have received if the common anniversary date had
not been established.
(3) If
an employee has a common anniversary date, the employee becomes entitled to an
annual vacation as follows:
(a) on
the first common anniversary date after employment starts with the employer, at
least 2 weeks’ vacation or a proportionately lesser period of vacation if the
employee has been employed for less than one year;
(b) on
the 2nd, 3rd, 4th and 5th common anniversary date after employment starts with
the employer, at least 2 weeks’ vacation;
(c) on
the 6th common anniversary date after employment starts with the employer, at
least
(i) 3 weeks’ vacation, and
(ii) vacation for the period that the proportion referred to in clause
(a), if any, bears to one week;
(d) on the 7th and subsequent common anniversary
dates after employment starts with the employer, at least 3 weeks’ vacation.
1996 cE-10.3 s35
Computing 5 or more
years of employment
36 When it is necessary to determine whether
an employee has been employed by an employer for 5 years of employment, or to
determine whether the 6th common anniversary date has occurred, any break in
the employee’s employment with the employer of less than 3 months is to be
counted as a period of continuous employment.
1996 cE-10.3 s36
How vacation is to be
given
37(1) Employers must give employees their annual
vacation in one unbroken period no later than 12 months after an employee
becomes entitled to it.
(2) If an employee so requests in writing, the
employer may provide the vacation in two or more periods, so long as each
vacation period is at least one day long.
1996 cE-10.3 s37
Dates for annual
vacations
38 If an employer and an employee are unable
to agree on a mutually satisfactory date to start the employee’s annual
vacation, the employer must give the employee at least 2 weeks’ written notice
of the date on which the employee’s annual vacation is to start, and the
employee must take the vacation at that time.
1996 cE-10.3 s38
Vacation pay for
employee paid monthly
39 For each week of vacation, the employer
must pay an employee paid by the month vacation pay of an amount at least equal
to the employee’s wages for the employee’s normal hours of work in a work month
divided by 4 1/3.
1996 cE-10.3 s39
Vacation pay for
employee paid other than monthly
40 The employer must pay an employee who is
not paid by the month vacation pay of an amount at least equal to,
(a) for
an employee entitled to 2 weeks’ vacation or any lesser amount, 4% of the
employee’s wages for the year of employment for which vacation is given, or
(b) for an employee entitled to 3 weeks’
vacation, 6% of the employee’s wages for the year of employment for which
vacation is given.
1996 cE-10.3 s40
When vacation pay is to
be paid
41(1) An employer may pay vacation pay at any time,
but must pay vacation pay to each employee no later than the next regularly
scheduled pay‑day after the employee starts annual vacation.
(2) If vacation pay has not been fully paid to an
employee before the annual vacation starts, the employee may request the
employer to pay vacation pay at least one day before the vacation starts and
the employer must comply with the request.
1996 cE-10.3 s41
Vacation pay on
termination of employment
42(1) If employment terminates before an employee
becomes entitled to a first annual vacation, the employer must pay the employee
4% of the employee’s wages earned during the employment.
(2) If
employment terminates after an employee becomes entitled to annual vacation,
the employer must pay the employee vacation pay of an amount equal to the
vacation pay to which the employee would have been entitled in that year of
employment if the employee had remained employed by the employer and
(a) for
an employee who is entitled to 2 weeks’ vacation, at least 4% of the employee’s
wages for the period from the date the employee last became entitled to an
annual vacation to the date employment terminates, or
(b) for an employee who is entitled to 3 weeks’
vacation, at least 6% of the employee’s wages for the period from the date the
employee last became entitled to an annual vacation to the date employment
terminates.
1996 cE-10.3 s42
When vacation pay is
considered to be wages
43 Vacation pay paid to an employee in one
year of employment is deemed to be wages for the purpose of calculating the
vacation pay payable to the employee in the following year of employment.
1996 cE-10.3 s43
Reductions in vacation
and vacation pay
44 When an employee is absent from work, an
employer may reduce the employee’s vacation and vacation pay in proportion to
the number of days the employee was or would normally have been scheduled to
work, but did not.
1996 cE-10.3 s44
Division 7
Maternity Leave and Parental Leave
Entitlement to maternity
leave
45 A pregnant employee who has been employed
by an employer for at least 52 consecutive weeks is entitled to maternity leave
without pay.
RSA 2000 cE‑9
s45;2001 c6 s2
Length of maternity
leave
46(1) The maternity leave to which a pregnant
employee is entitled is a period of not more than 15 weeks starting at any time
during the 12 weeks immediately before the estimated date of delivery.
(2) An
employee who takes maternity leave must take a period of leave of at least 6
weeks immediately following the date of delivery, unless the employee and her
employer agree to shorten the period by the employee’s giving her employer a
medical certificate indicating that resumption of work will not endanger her health.
RSA 2000 cE‑9
s46;2001 c6 s2
Notice of maternity
leave
47(1) A pregnant employee must give her employer at
least 6 weeks’ written notice of the date she will start her maternity leave,
and if so requested by her employer, the pregnant employee must provide her
employer with a medical certificate certifying that she is pregnant and giving
the estimated date of delivery.
(2) A
pregnant employee is entitled to start maternity leave on the date specified in
the written notice given to her employer under subsection (1).
RSA 2000 cE‑9
s47;2001 c6 s2
No notice of maternity
leave
48 An employee who does not give her
employer prior notice of maternity leave before starting it is still entitled
to maternity leave if, within 2 weeks after she ceases to work, she provides
her employer with a medical certificate
(a) indicating
that she is not able to work because of a medical condition arising from her
pregnancy, and
(b) giving
the estimated or actual date of delivery.
RSA 2000 cE‑9
s48;2001 c6 s2
Notice of employer to
start maternity leave
49 If during the 12 weeks immediately before
the estimated date of delivery the pregnancy of an employee interferes with the
performance of her duties, an employer may give the employee written notice
requiring her to start maternity leave.
RSA 2000 cE‑9
s49;2001 c6 s2
Parental leave
50(1) Subject to subsection (2), an employer must
grant parental leave to an employee as follows:
(a) in
the case of an employee entitled to maternity leave under this Division, a
period of not more than 37 consecutive weeks immediately following the last day
of maternity leave;
(b) in
the case of a parent who has been employed by the employer for at least 52
consecutive weeks, a period of not more than 37 consecutive weeks within 52
weeks after the child’s birth;
(c) in
the case of an adoptive parent who has been employed by the employer for at
least 52 consecutive weeks, a period of not more than 37 consecutive weeks
within 52 weeks after the child is placed with the adoptive parent for the
purpose of adoption.
(2) If
employees described in this section are parents of the same child, the parental
leave granted under subsection (1) may
(a) be
taken wholly by one of the employees, or
(b) be
shared by the employees.
(3) If
employees described in this section are parents of the same child and are
employed by the same employer, the employer is not required to grant parental
leave to more than one employee at a time.
2001 c6 s2
Notice of parental leave
51(1) An employee must give the employer at least 6
weeks’ written notice of the date the employee will start parental leave unless
(a) the
medical condition of the birth mother or child makes it impossible to comply
with this requirement;
(b) the
date of the child’s placement with the adoptive parent was not foreseeable.
(2) If
the employee cannot comply with the written notice requirement for any of the
reasons stated in subsection (1)(a) or (b), the employee must give the employer
written notice at the earliest possible time of the date the employee will
start or has started parental leave.
(3) An
employee is entitled to start parental leave on the date specified in the
written notice given to the employer under subsection (1) or (2).
(4) Written
notice under section 47(1) is deemed to be notice of parental leave under this
section unless the notice specifically provides that it is not notice of
parental leave, in which case this section applies.
(5) Employees
who intend to share parental leave must advise their respective employers of
their intention to share parental leave.
2001 c6 s2
Termination of
employment prohibited during
maternity leave and parental leave
52(1) No employer may terminate the employment of, or
lay off, an employee who
(a) has
started her maternity leave, or
(b) is
entitled to or has started parental leave.
(2) Subsection
(1) does not apply if an employer suspends or discontinues in whole or in part
the business, undertaking or other activity in which the employee is employed,
but the obligation of the employer to reinstate the employee or provide the
employee with alternative work in accordance with section 53.1 continues to
apply.
RSA 2000 cE‑9
s51;2001 c6 s2
Resumption of employment
53(1) Subject to section 46(2), an employee must give
the employer at least 4 weeks’ written notice of the date on which the employee
intends to resume work and in any event must give notice not later than 4 weeks
before the end of the leave period to which the employee is entitled or 4 weeks
before the date on which the employee has specified as the end of the
employee’s leave period, whichever is earlier.
(2) If
an employee has given notice that she intends to resume work on a date that is
before the end of the 6‑week period referred to in section 46(2), the
employee is entitled without further notice to an additional period of leave
sufficient to meet the requirements of section 46(2).
(3) The
additional period of leave referred to in subsection (2) is to be charged first
against any remaining maternity leave to which the employee is entitled and
then against parental leave, and if it is charged against parental leave the
amount of parental leave referred to in section 50 is reduced accordingly.
(4) An
employee is not entitled to resume working until the date specified in the written
notice referred to in subsection (1) or the end of the additional period
referred to in subsection (2), as the case may be.
(5) An
employee must resume work on the date specified in the written notice or
immediately following the end of the additional period, as the case may be, and
if the employee fails to return to work on that date the employee is not
entitled to resume work subsequently unless the failure to return to work
resulted from unforeseeable or unpreventable circumstances.
(6) If
an employee fails to provide at least 4 weeks’ notice before the end of the
leave period to which the employee is entitled, the employee is not entitled to
resume work unless the failure to provide the notice resulted from
unforeseeable or unpreventable circumstances.
(7) Where
an employee is entitled to resume work under this section, the employer must
(a) reinstate
the employee in the position occupied when maternity or parental leave started,
or
(b) provide
the employee with alternative work of a comparable nature
at not less than the
earnings and other benefits that had accrued to the employee when the maternity
or parental leave started.
(8) An
employee who does not wish to resume employment after maternity or parental
leave must give the employer at least 4 weeks’ written notice of intention to
terminate employment.
RSA 2000 cE‑9
s52;2001 c6 s2
Suspension of operations
53.1 If the business, undertaking or other
activity of an employer is suspended or discontinued in whole or in part during
an employee’s maternity or parental leave and the employer has not resumed
operations when the employee’s leave ends, the employer must, if the operation
is subsequently resumed within 52 weeks following the end of the leave,
(a) reinstate
the employee in the position occupied at the time the maternity or parental
leave started, at not less than the earnings and other benefits that had
accrued to the employee, or
(b) provide
the employee with alternative work in accordance with an established seniority
system or practice of the employer in force at the time the employee’s
maternity or parental leave started, with no loss of seniority or other
benefits accrued to the employee.
RSA 2000 cE‑9
s53;2001 c6 s2
Division 8
Termination of Employment
Calculating length of
employment for termination notice purposes
54 For the purposes of determining the
correct termination notice to be given by an employer or employee or
termination pay to be given by an employer, when an employee has been employed
by the same employer more than once, the periods of employment with that
employer are considered to be one period of employment if not more than 3
months has elapsed between the periods of employment.
1996 cE-10.3 s54
Options for employer to
terminate employment
55(1) Unless subsection (2) applies, an employer may
terminate the employment of an employee only by giving the employee
(a) a
termination notice under section 56,
(b) termination
pay under section 57(1), or
(c) a
combination of termination notice and termination pay under section 57(2).
(2) Termination
notice is not required
(a) to
terminate the employment of an employee for just cause,
(b) when
an employee has been employed by the employer for 3 months or less,
(c) when
the employee is employed for a definite term or task for a period not exceeding
12 months on completion of which the employment terminates,
(d) when
the employee is laid off after refusing an offer by the employer of reasonable
alternative work,
(e) if
the employee refuses work made available through a seniority system,
(f) if
the employee is not provided with work by the employer by reason of a strike or
lockout occurring at the employee’s place of employment,
(g) when
the employee is employed under an agreement by which the employee may elect
either to work or not to work for a temporary period when requested to work by
the employer,
(h) if
the contract of employment is or has become impossible for the employer to
perform by reason of unforeseeable or unpreventable causes beyond the control
of the employer,
(i) if
the employee is employed on a seasonal basis and on the completion of the
season the employee’s employment is terminated, or
(j) when employment ends in the circumstances
described in sections 62 to 64.
1996 cE-10.3 s55
Employer’s termination notice
56 To terminate employment an employer must
give an employee written termination notice of at least
(a) one
week, if the employee has been employed by the employer for more than 3 months
but less than 2 years,
(b) 2
weeks, if the employee has been employed by the employer for 2 years or more
but less than 4 years,
(c) 4
weeks, if the employee has been employed by the employer for 4 years or more
but less than 6 years,
(d) 5
weeks, if the employee has been employed by the employer for 6 years or more
but less than 8 years,
(e) 6
weeks, if the employee has been employed by the employer for 8 years or more
but less than 10 years, or
(f) 8 weeks, if the employee has been employed
by the employer for 10 years or more.
1996 cE-10.3 s56
Termination pay
57(1) Instead of giving a termination notice, an
employer may pay an employee termination pay of an amount at least equal to the
wages the employee would have earned if the employee had worked the regular
hours of work for the applicable termination notice period.
(2) An
employer may give an employee a combination of termination pay and termination
notice, in which case the termination pay must be at least equal to the wages
the employee would have earned for the applicable termination notice period
that is not covered by the notice.
(3) If the wages of an employee vary from one pay
period to another, the average of the employee’s wages for the 3‑month
period immediately preceding the date of termination of employment is to be
used to determine the employee’s termination pay.
1996 cE-10.3 s57
Termination of
employment by an employee
58(1) Except as otherwise provided in subsection (2),
to terminate employment an employee must give the employer a written
termination notice of at least
(a) one
week, if the employee has been employed by the employer for more than 3 months
but less than 2 years, or
(b) 2
weeks, if the employee has been employed by the employer for 2 years or more.
(2) Subsection
(1) does not apply when
(a) there
is an established custom or practice in any industry respecting the termination
of employment that is contrary in whole or in part to subsection (1),
(b) an
employee terminates employment because the employee’s personal health or safety
would be in danger if the employee continued to be employed by the employer,
(c) the
contract of employment is or has become impossible for the employee to perform
by reason of unforeseeable or unpreventable causes beyond the control of the
employee,
(d) the
employee has been employed by the employer for 3 months or less,
(e) the
employee is temporarily laid off,
(f) the
employee is laid off after refusing an offer by the employer of reasonable
alternative work,
(g) the
employee is not provided with work by the employer by reason of a strike or
lockout occurring at the employee’s place of employment,
(h) the
employee is employed under an agreement by which the employee may elect either
to work or not to work for a temporary period when requested to work by the
employer, or
(i) an employee terminates the employment
because of a reduction in wage rate, overtime rate, vacation pay, general
holiday pay or termination pay.
1996 cE-10.3 s58
Expediting termination
of employment after an employee’s termination notice
59(1) If an employee gives a termination notice that
is the minimum notice required to be given by the employee and the employer
wishes to terminate the employee’s employment before the end of the employee’s
notice period, the employer must pay the employee an amount at least equal to the
wages that the employee would have earned if the employee had worked the
employee’s regular hours of work for the remainder of the notice period given
by the employee.
(2) If an employee gives a termination notice that
is longer than the minimum notice required to be given by the employee and the
employer wishes to terminate the employee’s employment before the end of the
employee’s notice period, the employer must pay the employee an amount at least
equal to the wages the employee would have earned if the employee had worked
the employee’s regular hours for the remainder of the termination notice period
that the employer is required to give to the employee under section 56.
1996 cE-10.3 s59
Continuation of
employment after termination
60 A termination notice is of no effect if
an employee continues to be employed by the same employer after the date
specified for termination of employment.
1996 cE-10.3 s60
Earnings not to change
after termination notice given
61(1) Neither the wages, wage rate, nor any other
term or condition of employment may be reduced by an employer between the time
termination notice is given by the employer or employee and the date employment
terminates, whether or not work is required to be performed during that period.
(2) During
the period between the date a termination notice is given by an employer or
employee and termination of the employment, the employee remains employed by
the employer unless
(a) the
employer gives the employee termination pay, or
(b) the
employer terminates employment of the employee
(i) for just cause,
(ii) if the employee is laid off after refusing an offer by the
employer of reasonable alternative work,
(iii) if the employee refuses work made available through a seniority
system,
(iv) if the employee is not provided with work by the employer by
reason of a strike or lockout occurring at the employee’s place of employment,
or
(v) if the employment contract is or has become
impossible for the employer to perform by reason of unforeseeable or unpreventable
causes beyond the control of the employer.
1996 cE-10.3 s61
Layoff and Recall
Temporary layoff
62 If an employer wishes to maintain an
employment relationship without terminating the employment of an employee, the
employer may temporarily lay off the employee.
1996 cE-10.3 s62
Termination pay after
temporary layoff
63(1) On the 60th consecutive day of temporary
layoff, an employee’s employment terminates and the employer must pay the
employee termination pay on that day.
(2) Subsection
(1) does not apply if
(a) after
the layoff starts, and by agreement between the employer and employee, an
employer pays the employee wages or an amount instead of wages, in which case
the employment terminates and termination pay is payable when the agreement ends;
(b) the
employer makes payments for the benefit of the laid‑off employee in
accordance with a pension or employee insurance plan or the like, in which case
employment terminates and termination pay is payable when the payments cease;
(c) there is a collective agreement binding the
employer and employee containing recall rights for employees following layoff,
in which case employment terminates and termination pay is payable when the
recall rights expire.
1996 cE-10.3 s63
Effect of failure to
return to work after recall
64(1) If an employee fails to return to work within 7
consecutive days after being requested to do so in writing by the employer, the
employee is not entitled to termination notice or termination pay if the
employer decides to terminate the employee’s employment as a result of the
employee’s failure to return to work in accordance with the recall notice.
(2) Subsection (1) does not apply to an employee
bound by a collective agreement containing recall rights for employees
following a layoff.
1996 cE-10.3 s64
Division 9
Restriction on Employment of Children
Employment of children
65(1) No person may, during normal school hours,
employ, or permit to work on the person’s premises, an individual who is
required to attend school under the School
Act, unless the conditions specified in section 66 are complied with.
(2) No individual under 15 years old may be
employed without the written consent of the individual’s parent or guardian and
the approval of the Director, unless the regulations and the condition
specified in section 66 are complied with.
1996 cE-10.3 s65
Conditions of a child’s employment
66 The condition referred to in section 65
is that the individual must be enrolled in an off‑campus education
program provided under the School Act.
1996 cE-10.3 s66;1998
c27 s6
Division 10
Persons with Disabilities
Employment of persons
with disabilities
67(1) If the Director is satisfied that a proposed
employment arrangement between an employer and a prospective employee who has a
disability is satisfactory for both of them in all the circumstances, the
Director may issue to the employer a permit authorizing
(a) the
employer to pay the prospective employee a wage less than the minimum wage
prescribed by the regulations, and
(b) the
prospective employee to receive less than the minimum wage.
(2) A
copy of the permit must be served on the employer and the prospective employee.
(3) The employer or the prospective employee to
whom a permit applies may appeal the permit to an umpire.
1996 cE-10.3 s67
Part 3
Administration
Division 1
General
Director and Registrar
68(1) The Minister must appoint an individual who is
an employee under the Public Service Act
as the Director of Employment Standards.
(2) The Minister must appoint an individual as the
Registrar of Appeals.
1996 cE-10.3 s68
Appointment and
designation of umpires
69(1) The Lieutenant Governor in Council may
(a) appoint
individuals as umpires;
(b) authorize
the Minister to appoint as umpires individuals who are members of a class of persons
designated by the Lieutenant Governor in Council;
(c) designate
a class of persons, the members of which are deemed to have been appointed
umpires.
(2) The Minister may establish a code for the
ethical conduct of umpires.
1996 cE-10.3 s69
Liability of officials
70 No action for damages may be commenced
against the Director, an officer, the Registrar or an umpire for anything done
or not done in good faith in the performance or exercise or purported
performance or exercise of their functions, powers or duties under this Act.
1996 cE-10.3 s70
Delegation
71(1) The Director may delegate the performance or
exercise of any function, power or duty of the Director to one or more
individuals.
(2) A
delegation may be
(a) general
or specific to one or more functions, powers or duties, and
(b) subject
to conditions or applicable in the circumstances specified by the Director.
(3) The Director may not delegate the Director’s
power to issue a reinstatement or compensation order under section 89.
1996 cE-10.3 s71
Services by others
72(1) The Director may engage persons
(a) to
administer this Act or any provision of it, or
(b) to
perform services for and otherwise assist the Director and officers in
administering this Act.
(2) The Director may establish fees that a person
referred to in subsection (1) is entitled to for anything done under subsection
(1), and the person may collect those fees in accordance with the regulations.
1996 cE-10.3 s72
Alternative dispute
resolution
73(1) The Director may initiate and encourage the
voluntary efforts of employers and employees
(a) to
design fair processes in which to resolve complaints or concerns arising under
this Act, with or without the assistance of an officer, and
(b) to
settle complaints under this Act by appointing or facilitating the appointment
of an impartial third party mediator, fact-finder or other person to assist the
parties in settling their dispute.
(2) The Registrar may
(a) initiate
any system of appeal management in order to expedite the fair resolution of an
appeal;
(b) with
the agreement of the parties, appoint or facilitate the appointment of an
impartial third party mediator, fact‑finder or other person to assist the
parties in settling their dispute;
(c) design
processes to manage appeals that, at the option and with the agreement of the
parties, may be used to resolve an appeal.
(3) Nothing in this section affects the right of an
employee to make a complaint and to have it processed in accordance with this
Act.
1996 cE-10.3 s73
Scheme of employment
74(1) The Director may approve a scheme of employment
with respect to an employer and the employer’s employees or prospective
employees that applies despite any provision to the contrary in this Act.
(2) The Director may revoke, amend or vary an
approval for a scheme of employment at any time.
1996 cE-10.3 s74
Division 2
Employment Standards Officers
Certification and
appointment of officers
75(1) The Director must establish competency and
eligibility requirements to be met by individuals wishing to provide employment
standards services, including those that are a function of an officer or that
entail a power or duty of an officer.
(2) When
an individual satisfies the Director that the individual meets the competency
and eligibility requirements referred to in subsection (1), the Director may
certify the individual as eligible for appointment as an officer.
(3) The
Minister may appoint as employment standards officers only those individuals
who are certified as eligible for appointment by the Director.
(4) The authority of an officer under this Act may
be limited by conditions imposed by the Minister.
1996 cE-10.3 s75
Director exercising
powers, etc. of officer
76 The Director may exercise any power or
perform any function or duty of an officer.
1996 cE-10.3 s76
Officer’s authority
77(1) An officer may
(a) at
any reasonable time, enter any premises or other place in which the officer has
reason to believe that an individual is or was employed, to inspect employment
records and make copies of them;
(b) require
an employer, employee or any other person to provide oral or written statements
about any matter relating to employment or employment records at a specified
time, date and place;
(c) make
an inspection, investigation and inquiry that is necessary to ascertain whether
this Act or any order, award, demand, declaration, permit, approval or notice
under this Act has been or is being complied with;
(d) question
an employee, during the employee’s regular hours of work or otherwise, without
the employer’s being present, to ascertain whether this Act or an order, award,
demand, declaration, permit, approval or notice under this Act has been or is
being complied with;
(e) require
a person supplying information or giving an oral or written statement to give
any of them in the form of a written statement under oath;
(f) by
written notice, demand the production of employment records for inspection at a
time, date and place specified in the notice;
(g) on
giving a receipt for it, remove an employment record, for not more than 48
hours, to make copies of it;
(h) by
written notice, require an employer to record the times at which the employees
start and stop work each day they work;
(i) by
written notice, require an employer to post notices, information bulletins or
extracts from this Act at locations at the employer’s place of business
specified in the notice.
(2) An officer must not enter a private dwelling
without the consent of the occupier of the dwelling.
1996 cE-10.3 s77
Assistance to officers
78 Every employer and person acting on the
employer’s behalf and every employee must give whatever assistance is necessary
to an officer to enable the officer to make an entry, inspection, investigation
or inquiry.
1996 cE-10.3 s78
Directions
79(1) An officer as a result of an inspection,
investigation or inquiry under section 77 may direct an employer or employee to
comply with this Act or any order, award, demand, declaration, permit, approval
or notice under this Act.
(2) The direction may be made with or without
conditions and may be revoked, amended or varied at any time.
1996 cE-10.3 s79
Single employer
declaration
80(1) If, in the opinion of an officer, a business,
undertaking or other activity is carried on or has been carried on by or through
2 or more employers or other persons, or a combination of them, the officer may
make a single employer declaration, declaring that the employers or persons
named, or combination of them, are a single employer for the purposes of this
Act.
(2) A
copy of the declaration must be served on the employers or persons, or both,
and on the employees affected by it.
(3) An employer, employee or person affected by the
declaration may appeal the declaration to an umpire.
1996 cE-10.3 s80
Effect of declaration
81 If an officer or, on appeal, an umpire
makes a single employer declaration, the persons affected by the declaration
are jointly and severally liable for the payment of earnings to those
individuals who, as a result of the declaration, are considered to be employees
of the single employer.
1996 cE-10.3 s81
Division 3
Employment Standards Complaints, Investigations and Determinations
Employee complaints
82(1) An employee may make a written complaint to an
officer that
(a) the
employee is entitled to earnings;
(b) the
employment of the employee was suspended or terminated or the employee was laid
off
(i) contrary to section 52(1) after the employee started maternity
leave or because the employee was entitled to or had started parental leave,
(i.1) contrary to section 52.91 of the Public Health Act,
(ii) for the sole reason that garnishment proceedings are being or
might be taken against the employee,
(iii) because the employee gave evidence or may give evidence at any
inquiry or in any proceeding or prosecution under this Act,
(iv) because the employee requested or demanded anything to which the
employee is entitled under this Act, or
(v) because the employee made or is about to make any statement or
disclosure that may be required of the employee under this Act.
(2) A
complaint may be made at any time while the employee is employed by the
employer and, if the employee’s employment is terminated, at any time up to 6
months after the date on which the employment is terminated.
(3) When
the Director considers that there are extenuating circumstances, the Director
may extend the 6‑month period, before or after it expires.
(4) An employee may not be charged a fee for making
a complaint or for the investigation of a complaint.
RSA 2000 cE‑9
s82;2001 c6 s3;2007 c23 s2
When complaints may be
refused
83 An officer may refuse to accept or
investigate a complaint if
(a) the
officer considers that
(i) the complaint is frivolous or vexatious,
(ii) there is insufficient evidence to substantiate the complaint, or
(iii) there are other means available to the employee to deal with the
subject‑matter of the complaint that should be pursued before the
complaint is accepted or investigated,
or
(b) the employee is proceeding with another
action in respect of the subject‑matter of the complaint or has sought
and obtained recourse in respect of the subject‑matter of the complaint
before a court, tribunal or arbitrator or by some other form of adjudication.
1996 cE-10.3 s83
Mediation by officer
84(1) An officer may mediate between an employer and
an employee for the purpose of settling or compromising differences between
them and in doing so may
(a) receive
from an employer, on behalf of an employee, the money agreed on by the parties
in settlement of their differences;
(b) pay
to an employee money received on the employee’s behalf;
(c) do
any other things necessary to assist an employer and employee to settle their
differences.
(2) If
an officer assists or attempts to assist an employer or an employee, or both,
to reach a settlement or compromise, the officer is under no liability to
either of them in respect of the settlement or compromise.
(3) When an officer pays to an employee money
received as a result of a settlement or compromise, the employer is discharged
from further liability to the employee with respect to the amount received by
the employee.
1996 cE-10.3 s84
Decision of officer
85(1) If an officer
(a) determines
that the employee making a written complaint is not entitled to earnings,
(b) determines
that the employment of the employee was not suspended or terminated or that the
employee was not laid off in the circumstances or for the reasons described in
section 82(1)(b), or
(c) refuses
to accept or investigate a complaint,
the officer must serve
the employee with notice of that decision.
(2) The employee may appeal the decision of the
officer to the Director under section 88.
1996 cE-10.3 s85
Complaints referred to
Director
86 If an officer, after investigating a
complaint of an employee, has reason to believe that
(a) the
employment of the employee was suspended or terminated, or
(b) the
employee was laid off
in the circumstances or for the reasons described in
section 82(1)(b) and the officer is unable to mediate, settle or compromise the
difference between the employer and employee, the officer must refer the
complaint to the Director.
1996 cE-10.3 s86
Order of an officer
87(1) If an officer determines that earnings are due
to an employee and is unable to mediate, settle or compromise the difference
between the employer and employee, the officer must make an order requiring the
employer to pay to the employee, or to pay to the Director on behalf of the
employee, earnings to which the employee is entitled.
(2) If
an officer is unable to determine the amount of earnings that are due to an
employee because the employer has not made or kept complete and accurate
employment records, or has failed to make those records available to the
officer for inspection, the officer may determine the amount in any manner that
the officer considers appropriate.
(3) The employer or employee may appeal the order
of the officer to an umpire.
1996 cE-10.3 s87
Appeal to Director
88(1) Within 21 days from the date the employee is
served with the notice of a decision under section 85, the employee may appeal
to the Director by serving on the Director a written notice of appeal
specifying the reasons for it.
(2) A
notice of appeal that is postmarked by the Canada Post Corporation within the
21 days referred to in subsection (1) and that is received by the Director
outside the 21‑day period is deemed to have been received within the 21
days.
(3) On
receipt of the notice of appeal, the Director may
(a) review
the matter personally, or
(b) refer
the matter to another officer.
(4) The
Director or the reviewing officer may
(a) make
any decision or order that the original officer could have made, or
(b) direct
the original officer or another officer to accept or investigate the complaint
if the Director or reviewing officer is of the opinion that the refusal to
accept the complaint or to investigate it was not justified.
(5) There
is no appeal of a decision of the Director or the reviewing officer if the
decision is that
(a) the
employee is not entitled to earnings, or
(b) the
original officer was justified in refusing to accept or investigate the
complaint.
(6) The employer or employee may appeal to an
umpire a Director’s or reviewing officer’s order to pay earnings.
1996 cE-10.3 s88
Order for reinstatement
or compensation
89(1) This section applies when a complaint that
(a) the
employment of an employee was suspended or terminated, or
(b) the
employee was laid off
in the circumstances
or for the reasons described in section 82(1)(b) is referred to the Director.
(2) If
the Director determines that
(a) the
employment of an employee was suspended or terminated, or
(b) the
employee was laid off
in the circumstances
or for the reasons described in section 82(1)(b) and the Director is unable to
mediate, settle or compromise a difference between the employer and the
employee, the Director must make an order for reinstatement or compensation or
both.
(3) An
order of the Director for reinstatement or compensation may direct an employer
to do one or both of the following:
(a) reinstate
an employee, or
(b) pay
to the employee, or to the Director on the employee’s behalf, compensation of
an amount not exceeding the sum the employee would have earned if
(i) the employment of the employee had not been suspended or
terminated, or
(ii) the employee had not been laid off
in the circumstances or for
the reasons described in section 82(1)(b).
(4) The
employer or employee may appeal a Director’s order for reinstatement or
compensation to an umpire.
(5) If
the Director determines that
(a) the
employment of the employee was not suspended or terminated, or
(b) the
employee was not laid off
in the circumstances
or for the reasons described in section 82(1)(b), the Director must serve the
employee with notice of that decision.
(6) There is no appeal of the Director’s decision
under subsection (5).
1996 cE-10.3 s89
Limitation periods for
orders
90(1) No order under this Division may be made with
respect to earnings
(a) after
one year from the date on which the earnings should have been paid, if the
employee is still employed by the employer, and
(b) after
one year from the date the employment terminates, if the employee is no longer
employed by the employer.
(2) No
order of the Director for reinstatement or compensation may be made after one
year from the date that the employment of the employee was suspended or
terminated or that the employee was laid off.
(3) The
Director may extend the limitation period under subsection (1) or (2) by an
additional period of up to one year if the Director is satisfied that
extenuating circumstances warrant the extension.
(4) An
order under this Division may direct
(a) payment
of wages or overtime pay, or both, for a period not exceeding 6 months from
whichever first occurs:
(i) the order, or
(ii) the employee’s termination of employment, if the employee’s
employment is terminated;
(b) payment
of vacation pay or general holiday pay, or both, for a period not exceeding 2
years from whichever first occurs:
(i) the order, or
(ii) the employee’s termination of employment, if the employee’s
employment is terminated.
(5) An order of the Director for compensation under
section 89(3)(b) may direct payment for a period not exceeding 6 months from
the date that the employment of the employee was suspended or terminated, that
the employee was laid off or that the employer failed to reinstate the employee
or to provide the employee with alternative work, in accordance with Part 2,
Division 7, Maternity Leave and Parental Leave.
RSA 2000 cE‑9
s90;2005 c28 s4
General provisions about
orders
91(1) An order under this Division must
(a) name
the employer to whom the order is directed,
(b) name
the one or more employees in respect of whom the order is made, and
(c) specify
the amount payable in respect of each employee named in the order.
(2) An
order under this Division may also require an employer to pay to the Director
any fees payable to the Government under the regulations that are unpaid.
(3) A
copy of an order under this Division must be served on
(a) the
employer to whom it is directed, and
(b) each
employee in respect of whom it is made.
(4) An order under this Division may take into
account deductions authorized or permitted under this Act but must not take
into account a claim, counterclaim or set‑off by an employer against an
employee.
1996 cE-10.3 s91
Limitation on
revocations and amendments to orders
92(1) An officer’s order or single employer
declaration may be revoked, amended or varied by the officer who made it at any
time before the time for an appeal to an umpire has expired, but not after that
time.
(2) The
Director may vary or amend a collection notice at any time before the time for
an appeal to an umpire has expired, but not after that time.
(3) Even
though an appeal has been made to an umpire, the Director may, before the
umpire issues an award, revoke
(a) an
order of an officer or the Director under this Division or a certificate under
section 112(4)(b) at any time before the order or certificate is filed in the
Court, or
(b) a
single employer declaration or a collection notice at any time.
(4) If the Director revokes an order that has been
appealed to an umpire, the Director must return to the appellant any money paid
to the Director when the appeal was made.
1996 cE-10.3 s92
Variations or amendments
and appeals from them
93(1) If an order under this Division, a single
employer declaration or a collection notice is varied or amended, a copy of the
variation or amendment must be served on each person on whom the original
order, declaration or notice was served.
(2) A person who receives a variation or amendment
may appeal to an umpire, and the time for making the appeal starts from the
date of service of the variation or amendment.
1996 cE-10.3 s93
Settlement or compromise
by Director
94(1) Despite anything in this Act, the Director may
(a) refuse
to institute or to continue any proceeding or prosecution for the failure of an
employer or employee to comply with this Act, or
(b) settle
or compromise any difference between an employer and an employee and receive
money on behalf of the employee in settlement of the difference.
(2) When the Director pays to an employee any money
received on the employee’s behalf, the employer is discharged from further
liability to the employee with respect to the amount received by the employee.
1996 cE-10.3 s94
Division 4
Appeals to Umpires
Appeal to umpire
95(1) A person who has a right of appeal to an umpire
may appeal by serving on the Registrar written notice of appeal specifying the
reasons for it.
(2) A
notice of appeal must be served on the Registrar within 21 days after the date
of service on the appellant of a copy of
(a) a
permit for the employment of an employee who has a disability,
(b) a
single employer declaration,
(c) an
order under Division 3,
(d) a
collection notice, or
(e) a
certificate under section 112(4)(b).
(3) A
notice of appeal that is postmarked by the Canada Post Corporation within the
21 days referred to in subsection (2) and that is received by the Registrar
outside the 21‑day period is deemed to have been received within the 21
days.
(4) A
notice of appeal must be accompanied with
(a) any
fee payable under the regulations, and
(b) any
amount the employer is required to pay under an order under Division 3, which
must be provided in the form of a money order or certified cheque payable to
the Director.
(5) When
the Registrar considers that there are extenuating circumstances that warrant
doing so, the Registrar may
(a) waive
or reduce a fee or other amount required to be paid when the notice of appeal
is served, or
(b) accept security for the amount payable in
another form and amount acceptable to the Registrar.
1996 cE-10.3 s95
Appeal referred to
umpire
96(1) If a notice of appeal meets all the
requirements for an appeal, the Registrar must
(a) refer
the appeal to an umpire, and
(b) give
to the appellant and to each employee and employer who is a party to the
appeal, and to the Director, written notice of the date, time and place at
which the appeal will be considered.
(2) The Director is a party to every appeal to an
umpire and every proceeding resulting from an order or resulting from an
umpire’s award.
1996 cE-10.3 s96
Abandonment of appeal
97 An appellant may abandon an appeal by
serving written notice on the Registrar and by giving copies of the notice to
the other parties concerned.
1996 cE-10.3 s97
Conduct of Proceedings
Fair process
98(1) An umpire must treat all parties to an appeal
fairly.
(2) Each
party must be given an opportunity to present a case and to respond to the
other parties’ cases.
(3) An
umpire may conduct an appeal without requiring oral representations, but if a
party requests an opportunity to make oral representations, the umpire must
provide the opportunity.
(4) An umpire may determine the procedure to be
followed in the appeal.
1996 cE-10.3 s98
Conduct of appeal
99 An umpire may conduct the appeal through
video‑conference, electronic conferencing or other means satisfactory to
the umpire.
1996 cE-10.3 s99
Evidence
100(1) An umpire is not bound by the rules of evidence
or any other law applicable to judicial proceedings and has power to determine
the admissibility, relevance and weight of any evidence.
(2) An
umpire may determine the manner in which evidence is to be admitted.
(3) An
umpire may administer oaths, affirmations and declarations.
(4) An umpire may require witnesses to testify
under oath, affirmation or declaration.
1996 cE-10.3 s100
Provincial judges as
umpires
101(1) An umpire who is a provincial judge may issue
or direct an employee of the Crown in right of Alberta to issue a subpoena to
any person who in the opinion of the umpire may be able to give evidence that
relates to the appeal before the umpire.
(2) An
umpire who is a provincial judge has the same powers
(a) to
compel the attendance of witnesses, and
(b) to
punish a witness for
(i) disobeying a subpoena to appear,
(ii) refusing to be sworn, or
(iii) refusing to give evidence
as are conferred on a provincial judge by the Criminal Code (Canada).
1996 cE-10.3 s101
Obtaining evidence
102(1) A party to an appeal may request an umpire to
issue a person with a notice requiring the person to attend and give evidence
at the appeal at the time and place named in the notice.
(2) A
notice under subsection (1) must be served on the person concerned and has the
same effect as a notice in a court proceeding requiring a witness to attend at
a hearing or produce documents.
(3) If
a person fails to comply with an umpire’s notice issued under this section or
acts in a manner that may be in contempt of the umpire or the umpire’s
proceedings, the umpire may apply to the Court for an order directing
compliance with the umpire’s order or restraining any conduct found by the
Court to be in contempt of the umpire or the proceedings.
(4) On application, the Court may grant any order
that, in the opinion of the Court, is necessary to enable the umpire to carry
out the umpire’s duties.
1996 cE-10.3 s102
Failure to appear
103 At a hearing,
(a) if
the appellant fails to appear, the umpire may declare the appeal abandoned or
adjourn the matter, or
(b) if any other person fails to appear, the
umpire may adjourn the matter or proceed in the absence of the person who fails
to appear.
1996 cE-10.3 s103
Form of award
104(1) An umpire’s award must be in writing.
(2) The
award must indicate the place at which and the date on which it is made and
must be signed by the umpire.
(3) A
copy of each award must be provided to the Registrar, who must provide it to
each party to the appeal.
(4) The Registrar must keep, as a public record, a
copy of all awards issued by umpires.
1996 cE-10.3 s104
Settlement
105 If the parties settle the matters in
dispute themselves after an appeal has been referred to an umpire, an umpire
may record the settlement in the form of an award.
1996 cE-10.3 s105
Correction of errors
106(1) An umpire may
(a) correct
typographical errors, errors of calculation and similar errors in an award, or
(b) amend
an award so as to correct an injustice caused by an oversight on the part of
the umpire.
(2) A copy of a corrected or amended award must be
provided to the Registrar, who must provide it to each party to the appeal.
1996 cE-10.3 s106
Umpire’s award
107(1) An umpire may make an award
(a) confirming,
varying, revoking or substituting anything that is the subject of an appeal;
(b) doing
anything that an officer or the Director could have done under this Act;
(c) ordering
an employer or any employee of the employer to attend an educational program in
employment standards specified by the umpire, and determining who is to pay the
costs of the program and the attendance;
(d) imposing
costs, subject to the regulations.
(2) An
umpire’s award may take into account deductions authorized or permitted under
this Act but must not take into account a claim, counterclaim or set‑off
by an employer against an employee.
(3) There is no appeal of an umpire’s award.
1996 cE-10.3 s107
Disbursement of money
held by Director
108(1) When an umpire’s award orders an employer to
pay an amount to an employee, the Registrar must pay out any money paid when
the appeal was filed, in accordance with the umpire’s award.
(2) No
interest is payable on money paid under subsection (1).
(3) If the amount of money paid by the Registrar
under subsection (1) is less than the amount ordered to be paid to the
employee, the Director may, in accordance with this Act, enforce the unpaid
portion of the order.
1996 cE-10.3 s108
Part 4
Orders and Awards and Director’s Demands to Third
Parties
Division 1
Enforcement of Orders and Awards
Deemed trust
109(1) In this section, “purchase‑money security
interest” and “security interest” have the meanings given to them in the Personal Property Security Act.
(2) Despite
any other Act, every employer is deemed to hold all wages, overtime pay,
vacation pay and general holiday pay accruing or due to an employee in trust
for the employee, whether or not the amount accruing due or due has in fact
been kept separate and apart by the employer.
(3) Subject
to subsection (4) and section 111, wages, overtime pay, vacation pay and
general holiday pay accruing due or due to an employee are deemed to be secured
by a security interest on the property and assets of the employer to a maximum
of $7500, whether or not that property or those assets are subject to other
security interests, and are payable in priority to any other claim or right in
the property or assets, including
(a) any
claim or right of the Crown in right of Alberta, including, without limitation,
claims or rights of The Workers’ Compensation Board, and
(b) any
security interest, lien, charge, encumbrance, mortgage, assignment, including
an assignment of book debts, debenture or other security of whatever kind of
any person, whether or not perfected within the meaning of the Personal Property Security Act,
made, given, accepted
or issued before or after the wages, overtime pay, vacation pay or general
holiday pay accrued due, without registration or other perfection of the deemed
security interest.
(4) The
security interest referred to in subsection (3) does not take priority over a
purchase‑money security interest that is
(a) taken
prior to the wages, overtime pay, vacation pay or general holiday pay accruing
due, and
(b) registered
within the time periods referred to in section 22 of the Personal Property Security Act.
(5) This section and section 111 apply despite any
other Act but with the same force as sections 51, 52 and 53 of the Employment Pension Plans Act.
1996 cE-10.3 s109
Filing of order
110 If
(a) an
order of an officer or of the Director is not complied with and the time for an
appeal has expired, or
(b) an
umpire’s award is not complied with,
the Director may file the order or award with the clerk of
the Court in the judicial district in which the order or award was made, and
the order or award is then enforceable as an order or judgment of the Court.
1996 cE-10.3 s110
Registration of order in
land titles office
111(1) The Director may provide the Registrar of Land
Titles with an order of an officer or of the Director or an umpire’s award
respecting wages, overtime pay, vacation pay, general holiday pay or an amount
payable under an order of the Director for compensation and require the
Registrar of Land Titles to register the order on a certificate of title for
land described by the Director in which the employer has an interest.
(2) The
registration of an order or award referred to in subsection (1) on a
certificate of title creates a secured charge in favour of the Director, on
behalf of the employee, against the interests in land owned or held by the
employer included in the certificate of title.
(3) A
secured charge referred to in subsection (2) has the same priority it would
have if it were a mortgage registered against an interest in land.
(4) If the amount payable under the order or award
is paid, the Director must cause a registration under this section to be
discharged.
1996 cE-10.3 s111
Liability of directors
of corporate employers
112(1) In this section, “corporation” does not
include a society incorporated under the Societies
Act or a company referred to in art 9 of the Companies Act.
(2) Despite
any other Act, the directors of a corporation are jointly and severally liable
to an employee of the corporation for unpaid wages earned during a period not
exceeding 6 months.
(3) Subsection
(2) does not make a person liable for unpaid wages if
(a) the
person was not a director when the unpaid wages were earned,
(b) for
the reasons stated in section 119(2) or (3)(b) or (c) of the Business Corporations Act the person
would not be liable, or
(c) for
the reasons stated in section 79(2) or (3)(b) or (c) of the Cooperatives Act the person would not be
liable.
(4) When
wages owed to an employee by a corporate employer are not paid, the Director of
Employment Standards may serve on each of the directors and former directors of
the corporation who, in the opinion of the Director, are liable under
subsection (2) for the unpaid wages
(a) a
copy of the order or award filed in the Court, and
(b) a
certificate stating that wages in a stated amount are due and unpaid by the
employer and that the directors or former directors are liable for that amount.
(5) A
director or former director of a corporation who is served with the certificate
may appeal to an umpire.
(6) If
a director or former director does not appeal within 21 days from the date on
which the director or former director is served with the certificate, or if a
director or former director appeals but is unsuccessful, the Director of
Employment Standards may file the certificate with the clerk of the Court and
the certificate is then enforceable against the director or former director as
an order or judgment of that Court.
(7) No
certificate may be filed against a former director more than 2 years after the
date the person ceased to be a director.
(8) Section 119(6) and (7) of the Business Corporations Act and section 79(6) and (7) of the Cooperatives Act apply to a director who
has satisfied a claim under this section.
RSA 2000 cE‑9
s112;2001 cC‑28.1 s450
Reciprocal enforcement
of orders
113(1) If the Lieutenant Governor in Council is
satisfied that reciprocal provisions are in effect or will be made by another
jurisdiction for the enforcement of orders of officers or of the Director or
umpires’ awards, the Lieutenant Governor in Council may
(a) declare
that jurisdiction to be a reciprocating jurisdiction for the purpose of
enforcing orders, awards, certificates or judgments for the payment of earnings
made under an enactment of that jurisdiction, and
(b) designate
an authority within that jurisdiction as the authority who may make
applications or issue certificates under this section.
(2) If
an order, award, certificate or judgment for the payment of earnings has been
obtained under an enactment of a reciprocating jurisdiction, the designated
authority may apply to the Director to enforce the order, award, certificate or
judgment.
(3) On
receipt of a copy of the order, award, certificate or judgment for the payment
of earnings
(a) certified
to be a true copy by the court in which the order, award, certificate or
judgment is registered, or
(b) if
there is no provision in the reciprocating jurisdiction for registration,
certified to be a true copy by the designated authority,
and on being satisfied that the earnings or an amount
payable is still owing, the Director must file the copy of the order, award,
certificate or judgment with the clerk of the Court and the order is then
enforceable under this Act.
1996 cE-10.3 s113
Division 2
Director’s Demand to Third
Parties
Definition
114 In this Division, “employer” includes a
director or former director in respect of whom a certificate has been filed in
the Court under section 112(6).
1996 cE-10.3 s114
Director’s demand to third party
115(1) If the Director knows or has reason to believe
that
(a) an
employer has failed or is likely to fail to pay
(i) earnings to an employee, or
(ii) an amount of compensation that the Director may order payable under
section 89(3)(b) to an employee,
and
(b) a
third party is or is about to become indebted to the employer for a sum of
money or is about to pay a sum of money to the employer,
the Director may, even
though the Director has not determined the amount to which an employee is
entitled, issue a demand and serve it on the third party.
(2) The Director’s demand may direct the third
party to remit to the Director the amount specified in the demand.
1996 cE-10.3 s115
Duties of third party
116(1) On service of the Director’s demand, the third
party must
(a) if
the third party is indebted to the employer, pay the Director the amount of the
indebtedness or the amount specified, whichever is less,
(b) if
the third party is not indebted to the employer and will not or is not likely
to become indebted to the employer, reply to the Director accordingly, or
(c) if
the third party is not indebted to the employer but indebtedness is likely to
arise or will arise at a future date or on the happening of a future specified
event, reply to the Director accordingly.
(2) If
the Director is satisfied that the third party is neither indebted nor likely
to become indebted to the employer, the Director must revoke the Director’s
demand.
(3) On
receipt of a reply that future indebtedness will or is likely to arise, the
Director may revoke the demand and serve a further Director’s demand on the
third party to take effect at a future date or on the happening of a future
specified event.
(4) A further Director’s demand has ongoing effect
and the third party must, as soon as indebtedness to the employer arises, pay
to the Director the amount of the indebtedness or the amount specified in the
demand, whichever is less.
1996 cE-10.3 s116
Right of third party to
make deductions
117 Despite anything in this Division, when a
Director’s demand is received by a third party, the third party may deduct from
a payment made to the Director any amounts that the employer owes to the third
party.
1996 cE-10.3 s117
Debt created
118(1) A Director’s demand constitutes a debt owed by
the third party to the Director on behalf of the employees in respect of whom
the Director’s demand is issued for the amount specified in the demand, and the
debt arises
(a) at
the time the demand is received, if the third party is then indebted to the
employer, or
(b) when
the indebtedness of the third party arises if the third party is not indebted
to the employer when the demand is received and the demand is not revoked.
(2) The
Director may recover the amount specified in a Director’s demand by civil
action, and the third party may raise any defence to the action that could have
been raised against the employer if the employer had sued the third party for
recovery of the indebtedness.
(3) The
debt arising under this section is discharged if
(a) the
third party pays to the Director the sum required to be paid in the Director’s
demand,
(b) the
Director’s demand is revoked, or
(c) the employer pays the employees the amount
payable in respect of which the Director’s demand was issued.
1996 cE-10.3 s118
Liability of third party
not discharged
119 A third party in receipt of a Director’s
demand does not discharge the third party’s indebtedness to an employer
(a) unless
the Director’s demand is revoked or the third party receives the approval of
the Director in writing to discharge all or part of the debt, or
(b) until the third party complies with the
Director’s demand.
1996 cE-10.3 s119
Receipt issued by
Director
120 A receipt issued by the Director for money
paid in accordance with a Director’s demand is an absolute discharge of the
liability of the third party to the employer to the extent of the amount shown
on the receipt.
1996 cE-10.3 s120
Payment of money
received
121 When money is received in accordance with
a Director’s demand and an order or award has been filed in the Court, the
Director may pay the money in accordance with the order or award.
1996 cE-10.3 s121
Director’s collection notice
122(1) When money is received in accordance with a
Director’s demand and no order or award has been made or, if made, has not been
filed in the Court, the Director must as soon as possible serve the employer
and employees concerned with a written collection notice stating
(a) the
date of receipt of the money,
(b) the
amount received,
(c) the
amount of earnings claimed by the employees or amount of compensation claimed
by the employees that the Director may order payable or, if an order or award
has been made, the amount of earnings or compensation that the employer is
required to pay under the order or award, and
(d) that,
unless an appeal is made, the Director will, on expiration of the period for
appeal, pay
(i) the amount received under the Director’s demand, or
(ii) the amount claimed as unpaid earnings or an amount payable under
an order of the Director for compensation,
whichever is less, to the
employees concerned, and any balance remaining to the employer.
(2) An employer or employee affected by the
collection notice may appeal to an umpire.
1996 cE-10.3 s122
Disposition of money
received
123(1) If a collection notice is not appealed to an
umpire, the Director may pay the money in accordance with the collection
notice.
(2) If there is an appeal to an umpire, the
Director must hold the money pending disposition of the appeal by the umpire.
1996 cE-10.3 s123
Part 5
Offences, Procedures
and Regulations
Division 1
Offences and Penalties
No dismissal for
garnishment proceedings
124 No employer or other person may suspend,
lay off or terminate an employee for the sole reason that garnishment
proceedings are being or may be taken against the employee.
1996 cE-10.3 s124
Discrimination
prohibitions
125 No employer or any other person may
terminate or restrict the employment of or in any manner discriminate against
an individual because the individual
(a) has
made a complaint under this Act,
(b) has
given evidence or may give evidence at any inquiry or in any proceeding or
prosecution under this Act,
(c) requests
or demands anything to which the person is entitled under this Act, or
(d) has made or is about to make any statement
or disclosure that may be required under this Act.
1996 cE-10.3 s125
General prohibitions
126 No employer, employee or other person may
(a) contravene
or fail to comply with a notice of an officer or an order, award, permit or
certificate under this Act;
(b) delay
or obstruct an officer in the exercise of a power or performance of a function
or duty under this Act;
(c) falsify
an employment record or give any false or misleading information in respect of
employment records;
(d) make a complaint to an officer knowing it to
be untrue.
1996 cE-10.3 s126
Premium for employment
prohibited
127 No employer may receive a payment
directly or indirectly from a person for the purpose of employing that person.
1996 cE-10.3 s127
Employer prohibitions
128 No employer may
(a) fail
to pay earnings to an employee or to provide anything to which an employee is
entitled under this Act;
(b) require
an employee to work hours in excess of the hours of work permitted under this
Act;
(c) fail
to reinstate an employee or provide an employee with alternative work in
accordance with section 53 or 53.1;
(d) fail to keep employment records as required
by this Act.
RSA 2000 cE-9 s128;2001
c6 s4
Offences
129 A person who contravenes section 52, 65,
124, 125, 126, 127 or 128 or a regulation made under section 138(1)(e) is
guilty of an offence.
RSA 2000 cE‑9
s129;2001 c6 s5
Specific offences
130(1) If an employee works for less than the minimum
wage prescribed by the regulations, both the employer and the employee are
guilty of an offence.
(2) If
an employee works for less than the overtime rate to which the employee is
entitled, both the employer and the employee are guilty of an offence.
(3) If an employee directly or indirectly returns
to the employer all or part of the employee’s wages, so effecting a reduction
of the earnings actually received and retained by the employee to an amount
less than the minimum wage prescribed by the regulations or less than the
overtime rate to which the employee is entitled, both the employee and the
employer are guilty of an offence.
1996 cE-10.3 s130
Corporate offences
131 When a corporation commits an offence
under this Act, every director or officer of the corporation who directed,
authorized, assented to, permitted, participated in or acquiesced in the
offence is guilty of the offence, whether or not the corporation has been
prosecuted or convicted.
1996 cE-10.3 s131
Penalty
132(1) An employer, employee, director, officer or
other person who is guilty of an offence under this Act is liable,
(a) in
the case of a corporation, to a fine of not more than $100 000, and
(b) in
the case of an individual, to a fine of not more than $50 000.
(2) In addition to any other penalty imposed under
subsection (1), the judge who convicts the person may make an order requiring
payment, within the time fixed by the judge, to the Director on behalf of each
employee affected, of an amount not exceeding the sum that an officer, the
Director or an umpire could have ordered or awarded.
1996 cE-10.3 s132
Prosecutions
133 A prosecution for an offence under this
Act may be commenced within one year from the date on which the alleged offence
occurred.
1996 cE-10.3 s133
Division 2
Procedural Matters
Non-compellable witness
134(1) In this section, “adjudicator” means the Court
of Queen’s Bench or any other court and includes the Labour Relations Board or
any other board or person having by law or by the consent of the parties
authority to hear, receive and examine evidence, but does not include a
commissioner making an inquiry under the Public
Inquiries Act.
(2) The Minister, a person employed or engaged in
the administration of this Act or any person designated by the Minister or the
Director or selected by the parties to endeavour to effect settlement of any
matter to which this Act applies is not a compellable witness in proceedings
before an adjudicator respecting any information, material or report obtained
by the Minister or person under this Act.
1996 cE-10.3 s134
Service of documents
135(1) If anything is required or permitted to be
served under this Act it may, in addition to any other method provided by law,
be served
(a) in
the case of service on an individual,
(i) personally or by being left for the individual at the
individual’s last or most usual place of abode with a person who appears to be
at least 18 years old, or
(ii) by being sent to the individual by double registered mail or
certified mail to the individual’s residence, place of business or last known
postal address;
(b) in
the case of service on a corporation,
(i) personally on a director, officer or the manager or person in
charge of a place where the corporation carries on business,
(ii) by being left with a person who appears to be at least 18 years
old at, or by sending it by double registered or certified mail to,
(A) the registered head office of the
corporation, or
(B) the office of the attorney of an extra‑provincial
corporation,
or
(iii) by being sent by double registered or certified mail to a
director of the corporation at the director’s residence or last known postal
address;
(c) in
the case of service on a partnership,
(i) personally or by double registered or certified mail on any one
or more of the partners, or a person having, at the time of service, control or
management of the partnership business at the principal place of business of
the partnership, or
(ii) by being sent by double registered or certified mail to any one
or more of the partners at their residence or last known postal address.
(2) When
it is necessary to prove service of anything in the course of any proceeding or
prosecution under this Act,
(a) if
service is effected personally, the date on which it is served is the date of
service;
(b) if
service is effected by double registered or certified mail, service of it is
deemed to occur on
(i) the date of actual receipt, or
(ii) 7 days after the date of mailing where proof of service is
received without evidence of the date received;
(c) if service is effected by leaving it with a
person, service of it is deemed to occur on the date it was so left.
1996 cE-10.3 s135
Certification of copies
136 In a proceeding or prosecution under this
Act,
(a) a
copy of an order, award, approval, demand, declaration, permit or notice
certified by an officer or an umpire to be a true copy,
(b) a
copy of an employment record or other document or an extract of an employment
record certified to be a true copy by an officer or an employee of the Crown in
right of Alberta employed in the administration of this Act, or
(c) a
certificate of the Director that an employer has failed to comply with an
order, award, permit, certificate or notice
is to be admitted in
evidence as proof, in the absence of evidence to the contrary, of the matters
stated in it without proof that the certificate was signed by the person
purporting to sign it or of the appointment of the person signing.
1996 cE-10.3 s136
Employer’s duty to notify Minister of terminations
137 If an employer
intends to terminate the employment of 50 or more employees at a single
location within a 4‑week period, the employer must give the Minister 4
weeks’ written notice of intention to do so, specifying the number of employees
whose employment will be terminated and the effective date of the terminations,
unless the employees are employed on a seasonal basis or for a definite term or
task.
1996 cE-10.3 s137
Division 3
Regulations
Regulation-making
authority
138(1) The Lieutenant Governor in Council may make
regulations
(a) exempting
an employment, employer or employee from Part 2 or any provision of it;
(b) modifying
or substituting any provision of Part 2 in respect of an employment, employer
or employee;
(c) respecting
fees for the purposes of this Act, including who may establish the fees, who is
liable to pay the fees and the manner in which the fees may be recovered;
(d) requiring
an employer in an employment described in the regulations to provide an amount
of money instead of providing an annual vacation and vacation pay or an amount
of money instead of giving a general holiday with general holiday pay, the
conditions of entitlement, what constitutes vacation pay and general holiday
pay, the method of computing them, and when they must be paid, and designating
days as general holidays;
(e) prohibiting
or regulating the employment of individuals under 18 years of age on the basis
of their age, nature of employment or other circumstances and authorizing the
Director to approve exceptions and to impose conditions on the employment;
(f) fixing
one or more minimum wages to be paid by employers to employees and authorizing
the Director to approve exceptions, prohibiting or permitting deductions from
the minimum wage and fixing the maximum amount to be charged for board or
lodging, or both, that are provided by employers to employees;
(g) authorizing
an umpire to make an award concerning the imposition of costs specified in regulations, and
specifying how those costs are to be recovered;
(h) authorizing
a person who collects money owing to an employee under an order filed in the
Court to recover the costs of collection from the person against whom the order
was made and respecting the manner in which the costs may be recovered;
(i) respecting
appeals from decisions of the Director on the certification of an individual
under section 75 and the circumstances under which a certification under
section 75 may be reviewed or revoked;
(j) respecting
the conduct of officers;
(k) respecting
the collection of the fees charged by a person engaged by the Director under
section 72, who is liable to pay the fees and the manner in which they may be
recovered;
(l) specifying
an operation to be a “primary agricultural operation” for the purpose of section
2.
(2) A
regulation may be of particular or general application and applicable at
particular times or in particular circumstances, may be subject to conditions
and may delegate to or impose on the Director functions, powers or duties.
(3) A regulation under subsection (1)(a) or (b) and
any action or decision taken under or in accordance with the regulations under
subsection (1)(a) or (b) apply despite anything in the Act to the contrary,
except that no regulation overrides section 2.
1996 cE-10.3 s138