2014 LABOUR AND EMPLOYMENT ATLANTIC CANADA LEGISLATIVE UPDATE
As we move forward in 2015, we know our region's employers will want to be aware of new legislation that has passed or could soon pass that may affect them. The following is the 2014 year-end installment of our annual Atlantic Canada Labour and Employment Legislative Update.
1. New Brunswick
In 2014 many amendments passed in 2013 and early 2014 came into force. As a result, there have been changes to the Employment Standards Act, Workers' Compensation Act and the Occupational Health and Safety Act. These changes impact the time limits for making and reporting a workers' compensation claim; requirements for safety policies; and orientation for new employees and notification of accidents to WorkSafeNB. Changes to the Employment Standard Act include, among others, provisions on liability of directors for unpaid wages and protections for foreign workers. While the Prescription and Catastrophic Drug Insurance Act also became effective, the section relating to employers remitting payment to the director awaits proclamation.
Possible future amendments to the Workplace Health, Safety and Compensation Commission Act would change the minimum wage decision making process. Proposed changes to the Workplace Health, Safety and Compensation Commission Act would create the Worker's Compensation Appeals Tribunal.
The Department of Post-Secondary Education, Training and Labour and WorkSafeNB continues their three-year, multi-stage review of workers' compensation legislation which may impact the Workers' Compensation Act as well as the Workplace Health, Safety and Compensation Commission Act. The Government has also launched a Strategic Program Review which will seek to look for opportunities to eliminate waste and create efficiency in the delivery of government programs and services.
(a) Amendments and New Legislation:
Employment Standards Act
On December 19, 2014, Bill 3, An Act to Amend the Employment Standard Act was given Royal Assent. This amendment will change the minimum wage decision making process and eliminate the minimum wage board.
September 1, 2014 brought several amendments to the Employment Standards Act (Act) into force. These amendments relate to: the liability of directors; granting protections for foreign workers; unpaid leaves for parents and guardians to care for critically ill or injured children or to cope with the death or disappearance of a child as a result of a suspected crime; providing allowances for electronic pay statements; and implementing administrative penalties.
- Director's Liability
- A director of a corporation is jointly and severally liable with the corporation to an employee or former employee for:
- Up to six months wages owed that was earned or become due while that person was a director.
- Up to 12 months of vacation pay or pay in lieu of vacation owing that accrued while that person was a director.
- The director is only liable after the corporation fails to comply with an order for payment of the unpaid wages and may escape liability if he/she exercised reasonable diligence to provide the payments owed.
- A director will not be held liable for administrative penalties imposed on the corporation.
- Foreign Workers Protection
- Employers who recruit foreign workers must register with the Director of Employment Standards and provide specific information as outlined in the Act.
- Employers cannot require a foreign worker to use immigration consultants as a condition of employment.
- Employers cannot recover the costs incurred in recruiting foreign workers from foreign workers unless it is allowed under the recruitment program.
- Employers cannot reduce the wages, reduce or eliminate benefits, or change the terms or conditions of employment after recruiting a foreign worker.
- Employers and recruiters working for employers cannot misrepresent information about the conditions of employment, duties, wages and other employment information and they cannot provide false or misleading information about employers' and employees' rights to foreign workers.
- Employers and recruiters working for employers cannot take possession of or retain a foreign worker's property, including the foreign worker's passport or work permit.
- Employers who provide accommodation for foreign workers cannot refuse foreign workers the ability to vacate those accommodations.
- Employers and recruiters working for employers cannot threaten a foreign worker with deportation or another action for which there is no lawful cause.
- Request to refer a matter to the Board
- The time which a complainant whose complaint has been acted on and dismissed by the director may make a written request to the director to refer the matter to the board has been extended to 14 days.
- Unpaid Leave for Critical Illness, Death or Disappearance
- Employers must provide unpaid leave up to 37 weeks for employees to care for a critically ill or injured child provided a qualified medical practitioner has issued a certificate.
- Employers must also provide unpaid leave up to 37 weeks for employees whose child has died or disappeared as a result of a suspected crime.
- If both parents work for the same employer, they may not take more than a combined 37 weeks of unpaid leave in these circumstances.
- Electronic Pay Statements
- Employers can provide a pay statement to employees electronically if the employees have a means to access to the electronic statement confidentially while at work.
- Administrative Penalties
- An employer may be subject to an administrative penalty where they fail to comply with a notice of non-compliance with the Act within 30 days. The penalties can be between $150 and $900.
Workers' Compensation Act
Amendments to the Workers' Compensation Act came into force on June 1, 2014. The changes impact the time limits for making a claim and the reporting requirements as follows:
- An application for compensation must be made within one year after the date of a workplace accident or within six months of an accident resulting in a death. The Commission may extend the time limit where a delay is justified.
- Employers must give the Workplace Health, Safety and Compensation Commission notice within three days after a worker suffers an injury as a result of a workplace accident. The notice provided must include certain information about the worker and the incident. Namely: the occurrence and nature of the accident; the date, time and place of the accident; the name and address of the worker and the name and address of the worker's attending physician or surgeon and be in accordance with the regulations.
- Employers must establish a procedure requiring a worker to notify the employer of an accident that is required to be reported to the Commission.
Occupational Health and Safety Act
On June 1, 2014 amendments to the Occupational Health and Safety Act came into effect. Generally the changes include requirements for safety policies, orientation for new employees and notification to WorkSafeNB when there is an accident. More specifically:
- Employers with 20 employees or more must establish a written safety policy in consultation with employees which sets out responsibilities of the employees and employer at the workplace. A copy of the policy must be kept at the workplace and the a copy must be provided to an officer upon request.
- The safety policy must address certain issues including training, preparation of written work procedures and codes of practice, a hazard identification system and a system for prompt investigation of hazardous occurrences.
- In consultation with a health and safety representative, employers must review their health and safety program at least once a year.
- New employees must receive orientation and training in accordance with their employment before reporting to work. The orientation will include information on rights and liabilities under the Act and regulations.
- Employers must notify the Commission immediately if an employee suffers certain types of injuries including loss of consciousness, an amputation, a deep laceration or death.
- Employers must notify the commission immediately if an accidental explosion or exposure to a biological, chemical or physical agent occurs at a place of employment or a catastrophic event or a catastrophic equipment failure occurs and results in injury or could have resulted in injury.
An Act Respecting Pensions under the Public Service Superannuation
An Act Respecting Pensions under the Public Service Superannuation, became effective January 1, 2014. It repealed the Public Service Superannuation Act, RSNB 1973, c. P-26, and converted the pension plan under the PSSA into a shared risk plan for public sector employees and public sector retirees.
Prescription and Catastrophic Drug Insurance Act–s. 37, effective on a date set by proclamation
The Prescription and Catastrophic Drug Insurance Act was given Royal Assent on March 26, 2014 and proclaimed in force April 1, 2014. The legislation requires that all New Brunswickers have prescription drug insurance by April 1, 2015. Currently, the sections of the Act dealing with Governance of the Drug Insurance plan and early enrolment between April 1, 2014 and March 31, 2015 are in force. Parts of the legislation will only come into force in April 1, 2015 including sections on mandatory membership. Section 37, which will allow an employer to remit premiums to the director on behalf an employee, will come into force on a future day set by proclamation. The government has also enacted regulations pursuant to this piece of legislation.
Bill 4, An Act to Amend the Prescription and Catastrophic Drug Insurance Act was given first reading on December 9, 2014. If passed, the amendments would eliminate the mandatory phase between April 1, 2014 to March 31, 2015 of the Prescription and Catastrophic Drug Insurance Act, S.N.B. 2014, c. 4. The amendments would maintain the same requirements whereby employers may remit premiums to the director on behalf of an employee in accordance with the regulations.
An Act to Amend the Workplace Health, Safety and Compensation Commission Act – effective April 1, 2015
The Workplace Health, Safety and Compensation Commission Act will be amended by An Act to Amend the Workplace Health, Safety and Compensation Commission Act which received Royal Assent on May 21, 2014 and will come into force on April 1, 2015. The Act will become the Workplace Health, Safety and Compensation Commission and Workers' Compensation Appeals Tribunal Act. The changes will include the following elements:
- The Appeals Tribunal will have a chairperson and five to ten vice-chairs. Appeals will be heard by a member of the tribunal chosen by the chairperson or two members where there are exceptional circumstances. The chairperson will decide if there will be an oral hearing or written submissions.
- The Appeals Tribunal may accept relevant information whether or not the information would be admissible in court.
- The Appeals Tribunal will give a written decision within 90 days of the last hearing or last written submission. A decision of the Appeals Tribunal must be implemented by the Commission within 30 days.
- Where an appeal is made, the chairperson must give notice of the appeal to the Commission, the Office of the Workers' Advocate and the Office of the Employers' Advocate.
- The Commission has standing in any appeal to the Appeals Tribunal involving any question as to the interpretation or application of the Workplace Health, Safety and Compensation Commission and Workers' Compensation Appeals Tribunal Act or the Workers' Compensation Act, the Firefighters' Compensation Act or the Occupational Health and Safety Act or the policies approved by the Commission.
- The chairperson of the Appeals Tribunal must give an annual report to the minister.
An Act to Amend the Pension Benefits Act
Bill 92, An Act to Amend the Pension Benefits Act, was given Royal Assent July 29, 2014. The amendments allow the administrator to make changes to pension plans for the purpose of establishing a shared risk plan provision. On approval of a windup report, each person who is entitled to a pension, a deferred pension or other benefit or to a refund can transfer the commuted value of the pension to the shared risk plan provision. If a person does not exercise his/her rights within 90 days of receiving notice, the value of his/her pension will be transferred to the shared risk plan.
Minimum Wage Regulation
A new Minimum Wage Regulation pursuant to section 9 of the Employment Standards Act came into force December 31, 2014. The minimum wage is set at $10.30 per hour, and $453.20 per week for employees whose hours of work per week are unverifiable and who are not employed on a commission basis. The minimum wage for time worked in excess of the maximum number of hours of work established in section 4 is $15.45 per hour.
2. Newfoundland and Labrador
There were very few legislative changes in Newfoundland and Labrador in 2014.
(a) Amendments and New Legislation:
An Act to Amend the Labour Relations Act, SNL 2014, c. 19, in force June 22, 2014
In June 2014, the provincial government amended the Labour Relations Act, which governs unionized workplaces in the province, to:
- Remove the possibility of automatic card-based certification.
- Remove the requirement for the parties to formally request a conciliation board.
- Restate provisions relating to conciliation proceedings, strikes, and lockouts.
This amendment reversed a substantial change made in 2012 to introduce a card-based certification system, granting automatic union certification where 65% or more of the employees in the bargaining unit sign a union membership card. The 40% threshold to trigger a certification vote (where there is less than 65% support) was maintained in 2012.
The 2014 amendments removed the automatic certification provision to return to a strictly vote-based certification model. A vote will be ordered by the Labour Relations Board where there is more than 40% support for the union, based on a review of union membership cards signed and submitted to the board. The Act also contains a greater emphasis on conciliation proceedings prior to a strike or lockout.
Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act, RSNL 1990, c C-2 – effective December 31, 2014
The province had previously indicated that it would adopt offshore-specific occupational health and safety legislation. "Part III.1: Occupational Health and Safety" of this Act was brought into force as of December 31, 2014. It deals with everything from the operator's duty to establish an occupational health and safety policy, to inspector's powers, and the general duty of safety applicable to employers, supervisors, and workers alike. We provided you with more details in our 2013 legislative update. We encourage employers who employ workers in the offshore to review this legislation carefully.
Other Post-Employment Benefits Eligibility Modification Act, SNL 2014, c. O-9 – in force on January 1, 2015
This legislation is directed at employees in the provincial public service. It limits the eligibility of employees for non-pension, post-employment benefits previously agreed to, whether the eligibility can be established through a past practice of the employer or the express language of a collective agreement. The Act addresses, in particular, group health and life insurance plans offered by public employers to retired employees. Public employers may re-establish the terms on which retired employees may access post-employment benefits following the coming into force of the Act.
Labour Standards Regulations (Amendment) (O.C. 2014-245) made pursuant to the Labour Standards Act, RSNL 1990, c. L-2 – effective October 1, 2014
The Newfoundland and Labrador Labour Standards Regulations were amended to increase the regular hourly minimum wage to $10.25 commencing on October 1, 2014, while the minimum hourly overtime wage was increased to $15.38 per hour. On October 1, 2015, the minimum wage will increase again to $10.50 while the minimum hourly overtime wage will go up to $15.75 per hour.
Transitional Regulations (O.C. 2014-369) made pursuant to the Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act, RSNL 1990, c C-2 – effective December 31, 2014
The province adopted three federal regulations made under the federal Canada-Newfoundland Atlantic Accord Implementation Act: the Canada-Newfoundland and Labrador Offshore Marine Installations and Structures Occupational Health and Safety Transitional Regulations; the Canada-Newfoundland and Labrador Offshore Marine Installations and Structures Transitional Regulations; and the Canada-Newfoundland and Labrador Offshore Area Diving Operations Safety Transitional Regulations. These are complementary to the above-noted amendments to the statute itself. The adoption of these regulations will expire in five years, being December 31, 2019.
3. Nova Scotia
Compared to 2013 - a year in which there were many legislative changes, 2014 saw relatively few changes to legislation affecting employers. The Nova Scotia legislature did not make any changes to the Labour Standards Code, Trade Union Act, Human Rights Act, or the Workers' Compensation Act. Previously enacted changes did come into force in 2014, including the February Holiday Act, which creates a new statutory holiday in February, as well as amendments to the penalty system of the Occupational Health and Safety Act.
Two new laws passed but not yet proclaimed into force may have future implications for employers. First, the new Limitations of Actions Act, which, when in force, will create a new two year limitation period to bring actions in court (absent special circumstances) with a maximum 15 year absolute limitation period. In addition, the new Pooled Registered Pension Plans Act permits a group of employers to pool together to create a retirement savings vehicle for employees, administered by an independent body.
(a) Amendments and New Legislation:
February Holiday Act, S.N.S. 2013, c. 35 – comes in force January 1, 2015
As reported last year, the February Holiday Act which made amendments to the Labour Standards Code and the Retail Business Uniform Closing Day Act by creating a February statutory holiday came into force January 1, 2015. This legislation sets the third Monday in February in 2015 and in each subsequent year as a holiday to be kept and observed throughout the province. Nova Scotia has declared the holiday Viola Desmond Day, in honour of the African Nova Scotian civil rights activist. It will be celebrated for the first time on February 16, 2015.
Limitations of Actions Act, S.N.S. 2014, c. 35 – effective on a future date by proclamation
Currently, Nova Scotia does not have standardized limitation periods in itsLimitation of Actions Act. The limitation period for an action for wrongful or constructive dismissal (contract) in Nova Scotia provided a six year limitation period. However, an action could survive beyond six years if a court exercises its discretion by giving consideration to the (a) length and reasons for the delay; (b) information provided by the defendant to the plaintiff respecting time limits; (c) the extent to which the parties evidence would or is less cogent; (d) the conduct of the defendant after the cause of action arose that impeded the plaintiff's reasonable requests to inspect information to ascertain relevant facts; (e) the duration of any disability of the plaintiff; (f) the plaintiff's actions; and, (g) the steps taken by the plaintiff to obtain expert advice. This created great uncertainty and unpredictability of the limitation period.
On November 20, 2014, the Nova Scotia government gave Royal Assent to the new Limitations of Actions Act, though it has yet to be proclaimed into force. Once it does, it will have the following effect on employers:
- The new Act will create a new limitation period for civil claims of two years' from the "date of discovery."
- The new Act will also prevent a claim after 15 years from the day of the act or omission that caused it.
The limitation periods do not run while a claimant is a minor or while a claimant is incapable of bringing a claim due to a physical, mental or psychological condition. In such case, the limitation period is suspended.
Once in force, employers may want to consider revising their record retention policy to retain records that may be required to defend against a wrongful or constructive dismissal claim for a period of 15 years.
Occupational Health and Safety Act, S.N.S. 2013, c.41 – Proclaimed into force October 1, 2014
Although included in our 2013 legislative update, the changes to the administrative penalty system under the Occupational Health and Safety Act have now been proclaimed into force, effective October 1, 2014. The new regulations focus on the most serious infractions, repeat offenders and workplace safety education. The amendments are intended to streamline the appeal process, with the Labour Board now hearing all appeals, including compliance orders and administrative penalties which is intended to lead to consistent, fair decisions.
The amendment deals with Occupational Health and Safety Appeals from Administrative Orders as follows:
Any order, notice or other document required under the Act or regulations:
- Sent by regular mail is deemed to have been received 10 days after the day on which it was mailed, unless the person contesting receipt is able to establish that he or she, acting in good faith, did not receive the order, notice or other document until a later date through absence, incident, illness or other cause beyond that person's control.
- Must be served by (a) personal service; (b) a form of delivery that provides proof of delivery; (c) electronic transmission and service is deemed as follows:
- An order, notice or other document served by a form of delivery that provides proof of delivery is deemed received five days after the date of the first attempted delivery, unless the person being served establishes that, acting in good faith, the person did not receive until a later date, through absence, incident, illness or other cause beyond the person's control.
- An order, notice or other document served by electronic transmission and service (fax or email) is deemed received the next day after it was sent or, where that day is a Saturday or a holiday, on the next day that is not a Saturday or a holiday, unless the person establishes in good faith, that he or she did not receive the order, notice or other document until a later date, through absence, incident, illness or other cause beyond the person's control.
The amendment removes an intermediate stage of appeal to the executive director and replaces it with authority for the executive director, subject to the regulations, on the executive director's own motion, to review an order or decision of an officer, vary, revoke or suspend the order or decision or to make any order or decision that the officer could have made. The amendment clarifies that the executive director's standing as a party is limited to cases appealed to the board pursuant to the Act.
The chair of the labour board, under the amendment, has the power to determine whether the board hears an appeal as a one or three person panel.
The amendments allow for consolidation of appeals that a person might have before the board.
The amendments include a transition period for appeals initiated before the amendment is proclaimed, namely; that if an appeal is already initiated, or within an appeal period not expired before the amendment is proclaimed, it must be determined under the Act as it read immediately before the new amendment comes into force.
Pooled Registered Pension Plans Act, S.N.S. 2014, c.37 – effective on a future date by proclamation
The Nova Scotia legislature passed Bill No. 38, the Pooled Registered Pensions Plans Act which adopts the federal Pooled Registered Pension Plans Act with necessary changes. The Act, though given Royal Assent, has not yet come into force.
The Act takes the same approach as has similarly been taken in British Columbia and Saskatchewan. The key features of PRPPs under the legislation include:
- PRPPs will be voluntary in Nova Scotia for employers.
- Employees will have the choice of opting-out of participating in the PRPP within 60 days, and can later set a contribution rate of 0% if they do decide to participate.
- An employee's PRPP pension will be locked-in, but transferrable to another PRPP or pension plan (where permitted).
- PRPPs will be administered by licensed administrators, not the employer.
- The administrator will choose the contribution rate.
- Administrators are required to provide the PRPPs at a "low cost".
- Pension benefits can be paid by variable payments, life annuity, or transfer to a locked-in RRSP.
Minimum Wage Order made pursuant to the Labour Standards Code, N.S. Reg. 257/2011, as amended – effective April 1, 2015
The Government of Nova Scotia has accepted the Minimum Wage Review Committee's recommendation to increase the minimum wage by 20 cents, to $10.60 an hour, effective April 1, 2015.
The minimum wage for an employee with less than three months' experience will also increase by 20 cents an hour, to $10.10.
Pension Benefits Regulations, N.S. Reg. 139/2014
Part IV of the Pension Benefits Regulations, which deals with pre-retirement withdrawals from a pension fund in circumstances of "financial hardship," was amended by the legislature in 2014. The Regulations set out the circumstances of giving rise to "financial hardship." Previously, someone could apply for an early pension unlocking in a case of a mortgage default. The amendments to the Regulations now also permit an application where a person is facing eviction for unpaid rent (para. 69(1)(aa)). As with mortgage default, one can only rely on pending eviction once to obtain financial hardship unlocking (s. 95A).
Another basis for unlocking a pension fund due to financial hardship is income-based. Prior to the amendments, the maximum annual income to qualify for financial hardship was based on a percentage of maximum pensionable earnings. The amendment to the Regulations changed that percentage from 50% of the year's maximum pensionable earnings to 66 2/3% (para. 86(1)(c)). According to the Nova Scotia government news release, the maximum income cut-off for determining financial hardship is now $35,000, up from $21,000. Other amendments (para. 93(3)(a)) increase the maximum withdrawal from $21,000 up to $26,250.
4. Prince Edward Island
There has been only one legislative change in PEI in 2014 of interest. The changes to the Drug Cost Assistance Act, while not directly related to labour and employment, could have an impact on employers involved with providing particular insurance coverage. There have also been a few small changes to PEI regulations involving employment standards and workers' compensation benefits.
Drug Cost Assistance Act, 2013 c.10 R.S.P.E.I. 1988, D-14.1 – proclaimed July 1, 2014
The changes to this legislation were passed in late 2013 but came into force on July 1, 2014. The amendment to this legislation applies to an individual who is covered by third-party insurance and is eligible under the provincial plan. Going forward, the provincial plan will be the payor of last resort for several programs. The provincial plan provides some coverage for a variety of individuals. Three programs are most notable: catastrophic drug program, high cost drug program, and the seniors' drug cost assistance program. Employers who provide insurance coverage to employees, particularly those whose plans extend coverage into retirement, may have been significantly impacted by this change in legislation. Employer provided insurance has become the payor of first resort for a number of situations where it was formerly applied after the provincial programs. The impact of this change is specific to the insurance package provided to employees; but the change can significantly impact the cost of continuing to provide insurance coverage for employer provided insurance plans.
Employment Standards Reciprocity Order, EC810/95
There are now new reciprocal arrangements in place for the purpose of the enforcement of employment standards orders. In addition to the provinces and territories already covered, PEI now has arrangements in place with Quebec, Manitoba, Saskatchewan, and Alberta to ensure that orders, certificates or judgments for the payment of wages, overtime pay or another entitlement can be properly enforced in the partnering jurisdiction.
Minimum Wage Order, EC139/96
The minimum wage in the province as of October 1, 2014 is $10.35 per hour, up from $10.20 per hour.
Workers' Compensation Act General Regulations, EC831/94
Changes were made to the regulations under the Workers' Compensation Act to modify and increase the benefits payable on the death of a worker.