May 25, 2006
Labour and Immigration Minister Nancy Allan today released the Labour Management Review Committee’s (LMRC) consensus report on the Employment Standards Code.
"I would like to thank the LMRC for their dedicated work and for developing a consensus package of recommendations for change," Allan said. "The Employment Standards Code has not been extensively reviewed in almost 30 years and I will be looking closely at the package as it relates to updating and modernizing the act."
In 2005, Manitoba launched a review of the Employment Standards Code to look at updating the legislation to reflect the current realities of the economy, the changing face of the labour force and the demands on today’s families. The review generated over 100 submissions from employers, employees and stakeholders throughout the province and highlighted the need for substantial renewal of the code.
"The LMRC considered a number of specific proposals based on feedback from the public hearings," said Allan. "I am very pleased that their package represents consensus recommendations of the labour and management representatives of the committee."
Highlights of the proposed recommendations include:
three new unpaid family responsibility/sick days and three new unpaid bereavement days for death in an employee’s family;
improved statutory holiday pay provisions for part-time workers;
clarifying hours-of-work and overtime provisions for managers and salaried employees;
new graduated termination notice rules based on employees’ years of service;
guaranteeing employees who report for work minimum pay of three hours or the regularly scheduled shift, whichever is less;
new measures to promote compliance with the legislation including fines for repeat offenders;
reducing red tape by simplifying the process employers are required to follow to obtain permits for certain industries for averaging daily or weekly hours over a specified time frame;
new protections for children including restrictions on the hours and type of work children may undertake and prevention of anyone under the age of 18 from working alone between 11 p.m. and 6 a.m.;
improving the ability to recover earned wages; and
improving provisions for overtime pay for incentive-based workers.
The LMRC will continue to review other regulatory changes including specific hours of work provisions for seasonal industries and minimum standards protection for certain categories of domestics and agricultural employees. Consultation with agriculture industry stakeholders has begun and will continue to assist the committee in its review.
"Part of the challenge of maintaining Manitoba’s competitive edge is ensuring the legislation governing our workplaces is modern and equitable for employers and workers," said Allan. "These recommendations will help guide us in achieving that goal, bringing us more into the Canadian mainstream in many areas, and better reflecting the realities of today’s workplaces and the demands for a better work-life balance."
The LMRC is made up of an equal number of labour and business representatives and is chaired by Michael Werier.
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BACKGROUND INFORMATION
Summary OF Labour Management Review Committee Recommendations
1.0 Exclude Managers from Hours of Work and Overtime
The Committee recommends that a manager be excluded from hours of work and overtime. The definition for manager should be taken from The Labour Relations Act. That is, a manager is a person that performs management functions primarily.
2.0 Exclude Some Employees that Meet an Earnings Threshold and Exercise Control from Hours of Work and Overtime
The Committee recommends that all workers that meet a minimum earnings threshold (two times the industrial average wage - $68,474 in 2005) and exercise substantial control over their own work schedule be excluded from hours of work and overtime.
3.0 Introduce Provisions for Averaging Permits and Industry Wide Variances
The Committee recommends that the process for averaging permits and variances be moved from the Manitoba Labour Board to the Director of Employment Standards.
The Committee recommends that certain industry wide variances should be place in regulation so long as those industries are well defined so as to prevent abuse.
4.0 Change Method of Calculating Overtime for Incentive-Based Workers
The Committee recommends that it is appropriate to provide an overtime premium for these workers. The overtime rate should be based on an hourly wage rate determined by a specific formula (the total wages earned in a pay period divided by the total hours worked). In cases where the productivity of an employee can be measured during overtime hours, the Committee recommends that the overtime wage rate should be time-and-a-half the productivity (e.g. one and a half times the commission, piece-rate, etc., earned during the overtime hours).
5.0 Implement Reporting Pay of Three Hours
The Committee recommends that workers should have some level of guaranteed hours when they report to work. In order to provide flexibility for specific employment relationships that require less than three hours of work the Committee recommends that reporting pay be three hours or the regularly scheduled shift, whichever is less.
6.0 Introduce Administrative Penalties for Repeat Violations
The Committee recommends that in order to deal with repeat offenders the legislation provide administrative penalties for prescribed violations of the Code. The Committee is continuing to meet to discuss the specific structure for administrative penalties.
7.0 Eliminate Directors Liability for Wages in Lieu of Notice
The Committee recommends that directors’ liability should not apply to wages in lieu of notice (group and individual).
8.0 Improve Ability to Recover Earned Wages from Directors of Companies
The Committee recommends the legislation improve the ability to recover earned wages from a director by having the ability to deem a person, who manages or supervises a corporation, a director for the purposes of holding an individual liable for earned wages. This would only apply in those situations where a corporation is operating without a director.
9.0 Introduce Graduated Notice for Termination of Employment
The Committee recommends the legislation provide a graduated scale for notice of termination (ranging from one to eight weeks based on an employee’s length of service). An employee would be required to provide one to two weeks notice based on the employee’s length of service.
The Committee recommends that employers not have the right to permanently withhold the wages of an employee that does not provide proper notice.
10.0 Provide Statutory Holiday Pay for Part-time Workers
The Committee recommends that part-time workers be provided with statutory holiday pay that is pro-rated to reflect their gross wages in the four weeks leading up to the holiday.
11.0 Codify and Limit Deductions from Pay
The Committee recommends that deductions from an employee’s wages should be prohibited where there is no direct benefit to the employee. The Committee recommends that some deductions should be permitted such as those required by statute; court orders or judgments; paying back previous advance on wages; correcting an overpayment of wages; premiums for company benefit plans; board and lodging; meals; voluntary employee purchases; transferable tools of the trade; and education that benefits the employee.
12.0 Codify Restrictions on Employment of Children
The Committee recommends that children (those under 16) be prohibited from working during the hours of 11 p.m. and 6 a.m. and that these children be restricted to 20 hours of work per week during a week of school. The Committee acknowledges that flexibility from these rules is provided by the ability for the Director to override restrictions in exceptional circumstances. The Committee also recommends that individuals under 18 be prohibited from working alone between 11 p.m. and 6 a.m.
The Committee is continuing to meet on prohibiting children from working in high risk industries. The Committee will report back to the Minister by June 30, 2006, on this proposal.
13.0 Introduce Unpaid Leaves for Work-Life Balance
The Committee recommends that three unpaid days for bereavement leave and three unpaid leave for family or sick leave be extended to employees. For the purpose of both leaves, the Committee recommends the definition of family be consistent with the definition used for compassionate care leave.
The Committee recommends the legislation clarify that leave must be necessary for the employee to attend to their family responsibility or sick needs. The employee must provide as much notice as possible of their intent to take the leave and the employer is entitled to reasonable verification the leave was necessary in the circumstances.
Administrative Change # 1 - Modify Deposit Requirements for referral to MLB
The Committee recommends that an employer appealing a ruling to the Manitoba Labour Board be required to pay the full amount of the order. If the order is more than $5,000, the employer may apply to the Board for a reduction in the amount of the deposit.
Administrative Change # 2 - Board May Order Costs
The Committee recommends the Manitoba Labour Board have the power to require a person to pay all or any part of any other party’s costs in relation to the hearing, as the board considers reasonable, if in the board’s opinion the person’s conduct before the board was unreasonable; or having the matter referred to the board was frivolous or vexatious.
Administrative Change # 3 - Costs of Collection Added to Judgment
The Committee recommends the costs of collection incurred by the Department’s collection agency by adding to the cost of a judgment.
Administrative Change # 4 -Termination Exclusion of Some Sales of Businesses
The Committee recommends that an additional exclusion be added to the requirements for an employer to provide notice of termination. Under this exclusion an employer would not be required to provide notice in those situations where there is a sale of business and the employees are immediately rehired by the purchaser on substantially the same terms and conditions of employment.
14.0 Extend Some Provisions of the Code to Industrial Agricultural Settings such as Hog Farms, and in Specific Factory-Type Agricultural Operations such as Mushroom Farms
The Committee is continuing to meet on this proposal with input from agricultural stakeholders and therefore have not yet reached a consensus. The Committee is expected to report back to the Minister by June 30, 2006.
15.0 Improve Protections for Domestic Workers
The Committee is continuing to meet on this proposal and therefore have not yet reached a consensus. The Committee is expected to report back to the Minister by June 30, 2006.
RETURN