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Jobs and Growth Act, 2012 (S.C. 2012, c. 31)

Assented to 2012-12-14

Marginal note:2001, c. 34, ss. 18(F) and 19(F)

 Sections 196 to 198 of the Act are replaced by the following:

Marginal note:Holiday pay
  • 196. (1) Subject to subsections (2) to (4), an employee shall, for each general holiday, be paid holiday pay equal to at least one twentieth of the wages, excluding overtime pay, that they earned in the four-week period immediately preceding the week in which the general holiday occurs.

  • Marginal note:Employees on commission

    (2) An employee whose wages are paid in whole or in part on a commission basis and who has completed at least 12 weeks of continuous employment with an employer shall, for each general holiday, be paid holiday pay equal to at least one sixtieth of the wages, excluding overtime pay, that they earned in the 12-week period immediately preceding the week in which the general holiday occurs.

  • Marginal note:First 30 days of employment

    (3) An employee is not entitled to holiday pay for a general holiday that occurs in their first 30 days of employment with an employer.

  • Marginal note:Continuous operation employee not reporting for work

    (4) An employee who is employed in a continuous operation is not entitled to holiday pay for a general holiday

    • (a) on which they do not report for work after having been called to work on that day; or

    • (b) for which they make themselves unavailable to work when the conditions of employment in the industrial establishment in which they are employed

      • (i) require them to be available, or

      • (ii) allow them to make themselves unavailable.

  • Marginal note:Employment

    (5) For the purposes of subsection (3), a person is deemed to be in the employment of another person when they are available at the call of that other person, whether or not they are called on to perform any work.

Marginal note:Additional pay for holiday work
  • 197. (1) An employee who is required to work on a day on which they are entitled to holiday pay shall be paid, in addition to the holiday pay for that day, wages at a rate equal to at least one and one-half times their regular rate of wages for the time that they work on that day.

  • Marginal note:Employment in continuous operation

    (2) An employee employed in a continuous operation who is required to work on a day on which they are entitled to holiday pay shall

    • (a) be paid in accordance with subsection (1);

    • (b) be given a holiday with pay at some other time, either by adding it to their annual vacation or by granting it at a time convenient to both the employee and the employer; or

    • (c) be paid holiday pay for the first day on which they do not work after that day, if a collective agreement that is binding on the employer and the employee so provides.

  • Marginal note:Employees not entitled to holiday pay

    (3) If an employee who is not entitled to holiday pay under subsection 196(3) is required to work on a general holiday, they shall be paid at a rate equal to at least one and one-half times their regular rate of wages for the time that they work on that day unless they are employed in a continuous operation, in which case they are entitled to their regular rate of wages for the time that they work on that day.

Marginal note:R.S., c. 9 (1st Supp.), s. 8; 1993, c. 42, ss. 24 and 25; 2001, c. 34, s. 20(F)

 Sections 199 to 202 of the Act are replaced by the following:

Marginal note:Holiday work for managers, etc.

199. Despite section 197, an employee excluded from the application of Division I under subsection 167(2) who is required to work on a day on which they are entitled to holiday pay shall be given a holiday with pay at some other time, either by adding it to their annual vacation or by granting it at a time convenient to both the employee and the employer.

Marginal note:Holiday pay deemed to be wages

200. Holiday pay granted to an employee is for all purposes deemed to be wages.

Marginal note:Application of section 189

201. Section 189 applies for the purposes of this Division.

 The Act is amended by adding the following after section 251:

Complaints

Marginal note:Making of complaint
  • 251.01 (1) Any employee may make a complaint in writing to an inspector if they believe that the employer has contravened

    • (a) any provision of this Part or of the regulations made under this Part; or

    • (b) any order.

  • Marginal note:Time for making complaint

    (2) A complaint under subsection (1) shall be made within the following period

    • (a) in the case of a complaint of non-payment of wages or other amounts to which the employee is entitled under this Part, six months from the last day on which the employer was required to pay those wages or other amounts under this Part; and

    • (b) in the case of any other complaint, six months from the day on which the subject-matter of the complaint arose.

  • Marginal note:Extension of time

    (3) The Minister may, subject to the regulations, extend the period set out in subsection (2)

    • (a) if the Minister is satisfied that a complaint was made within that period to a government official who had no authority to deal with the complaint and that the person making the complaint believed the official had that authority;

    • (b) in any circumstances prescribed by regulation; or

    • (c) in the conditions prescribed by regulation.

  • Marginal note:Limitation

    (4) An employee is not permitted to make a complaint under subsection (1) if the complaint is that the employee has been dismissed and considers the dismissal to be unjust.

  • Marginal note:For greater certainty

    (5) For greater certainty, a complaint is not permitted under this section if it relates to a disagreement whose settlement is governed exclusively by a collective agreement under subsection 168(1.1).

Marginal note:Suspension of complaint
  • 251.02 (1) If satisfied that the employee must take measures before the complaint may be dealt with, an inspector may suspend consideration of the complaint made under section 251.01, in whole or in part.

  • Marginal note:Notice

    (2) If the inspector suspends a complaint, the inspector must notify the employee in writing and specify in the notice

    • (a) the measures that the employee must take; and

    • (b) the period of time within which the employee must take those measures.

  • Marginal note:Extension of time

    (3) The inspector may, upon request, extend the time period specified in the notice.

  • Marginal note:End of suspension

    (4) The suspension ends when, in the inspector’s opinion, the measures specified in the notice have been taken.

Marginal note:Inspector to assist parties

251.03 After receipt of a complaint, an inspector may assist the parties to the complaint to settle the complaint or cause another inspector to do so.

Marginal note:Settlement of amounts due
  • 251.04 (1) If an employer and an employee who has made a complaint relating to the non-payment of wages or other amounts to which they are entitled under this Part reach a settlement in writing on the wages or other amounts to be paid, the employer may pay those amounts to the employee or to the Minister.

  • Marginal note:If amount paid to Minister

    (2) If an employer pays the amounts to the Minister, the Minister shall, without delay after receiving them, pay them over to the employee who is entitled to the amounts.

  • Marginal note:Minister’s consent required for prosecution

    (3) No prosecution for failure to pay an employee the wages or other amounts that were the subject of the complaint may without the written consent of the Minister be instituted against an employer if the employer has paid the amount of wages or other amounts referred to in subsection (1) to the employee or the Minister.

Marginal note:Rejection of complaint
  • 251.05 (1) An inspector may reject a complaint made under section 251.01, in whole or in part,

    • (a) if the inspector is satisfied

      • (i) that the complaint is not within their jurisdiction,

      • (ii) that the complaint is frivolous, vexatious or not made in good faith,

      • (iii) that the complaint has been settled,

      • (iv) that there are other means available to the employee to resolve the subject-matter of the complaint that the inspector considers should be pursued,

      • (v) that the subject-matter of the complaint has been adequately dealt with through recourse obtained before a court, tribunal, arbitrator or adjudicator,

      • (vi) that in respect of a complaint other than a complaint of non-payment of wages or other amounts to which the employee is entitled under this Part, there is insufficient evidence to substantiate the complaint, or

      • (vii) that in respect of a complaint made by an employee who is subject to a collective agreement, the collective agreement covers the subject-matter of the complaint and provides a third party dispute resolution process; or

    • (b) if consideration of the complaint was suspended under subsection 251.02(1) and if, in the inspector’s opinion, the other measures specified in the notice under subsection 251.02(2) were not taken within the specified time period.

  • Marginal note:Notice of rejection of complaint

    (2) If a complaint has been rejected, the inspector shall notify the employee in writing, with reasons.

  • Marginal note:Request for review

    (3) The employee may, within 15 days after the day on which the employee is notified of the rejection, request in writing, with reasons, that the Minister review the inspector’s decision.

  • Marginal note:Review

    (4) The Minister may confirm the inspector’s decision, or rescind it and direct an inspector to deal with the complaint.

  • Marginal note:Notice of Minister’s decision

    (5) The Minister shall notify the employee in writing of the Minister’s decision.

  • Marginal note:Review is final

    (6) The Minister’s confirmation or rescission is final and conclusive and is not subject to appeal to or review by any court.

Marginal note:1993, c. 42, s. 37

 Subsection 251.1(2) of the Act is replaced by the following:

  • Marginal note:Limitation

    (1.1) A payment order must not relate to wages or other amounts to which the employee is entitled for the period preceding

    • (a) in the case where the employee made a complaint under subsection 251.01(1) that was not rejected under subsection 251.05(1), the 12 months before the day on which the complaint was made or, if there was a termination of employment prior to the complaint being made, the 12 months before the date of termination; and

    • (b) in any other case, the 12 months before the day on which an inspection under this Part, during the course of which the inspector made the finding referred to in subsection (1), began.

  • Marginal note:Unpaid vacation pay

    (1.2) In respect of unpaid vacation pay, a reference to a period of 12 months in subsection (1.1) shall be read as a reference to a period of 24 months.

  • Marginal note:If complaint unfounded

    (2) An inspector dealing with a complaint of non-payment of wages or other amounts to which an employee is entitled under this Part shall notify the employee in writing that their complaint is unfounded if the inspector concludes that the employer has paid to the employee all wages and other amounts to which the employee is entitled under this Part for the period of six months set out in paragraph 251.01(2)(a) or for the extended period provided for in subsection 251.01(3).

 
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