3-Nov-2003
The 1st Session of the 59th General Assembly of the Nova Scotia Legislature ended on Thursday, October 30th, 2003. During this session, several important pieces of legislation were passed that impact Nova Scotia employers. Some of the more significant features of the new legislation are highlighted below. In addition, there are changes to federal legislation which are of interest.
PROVINCIAL LEGISLATION
The following legislation has been passed, but only the elimination of public service mandatory retirement, Sunday Shopping and changes to the Labour Standards Code bill are now the law. The other provincial legislation will take effect when proclaimed.
Bill No. 2 amends the Retail Business Uniform Closing Day Act and Labour Standards Code to allow Sunday shopping on the last six Sundays before Christmas Day.
- The Uniform Closing Day Act has been amended to allow retail businesses to open on a trial basis between 1:00 and 6:00 p.m. on Sundays between November 16 and December 21, 2003 inclusive. Retail businesses cannot be forced to open during those times.
- Whether Sunday shopping will occur in the future will be dealt with in a plebiscite next fall.
- Employers cannot force employees to work on those Sundays. Employees cannot be discharged, laid off, suspended, intimidated, penalized, disciplined or discriminated against for refusing Sunday work.
- Where an employee agrees to work on a Sunday, the employee can still refuse to work on Sundays or a particular Sunday by giving the employer seven (7) days notice before the scheduled Sunday shift. If an employee is scheduled to work a Sunday with less than seven (7) days notice, the employee can refuse to work by giving the employer notice within two (2) days of receiving the schedule.
- Where an employer contravenes the Sunday shopping provisions of the Code, the Labour Standards Director may order reinstatement; payment of wages, salary, pay or other benefits that the employee would have earned but for the contravention; the removal of any reprimand or reference to the matter from the employer’s records; and any other thing necessary to secure compliance with the Code and regulations.
Bill No. 2 makes substantial changes to the Labour Standards Code unrelated to Sunday shopping. These changes include increased penalties to employers and powers of the Labour Standard Tribunal, increased vacation time for certain employees, allowing more generous overtime for employees required to work in excess of 48 hours per week and leave for parents/guardians of sick children. The Code has also been significantly modified by Bill No. 7 which provides for compassionate care leave. These provisions, in Bill No. 7 have been passed but not yet proclaimed.
- The Tribunal may now reinstate an employee where there is any contravention of the Act.
An employee with eight (8) or more years of service is entitled to at least three (3) weeks unbroken vacation. Formerly, the entitlement was two (2) weeks.
Employers will be required to pay employees who are required to work more than forty-eight (48) hours in a week, one and a half (1 ½) times the employee’s regular hourly wage for each additional hour worked in that week. Under the former legislation the overtime rate was calculated at one and one half (1 ½) times the minimum wage.
Employees may take up to three (3) days unpaid leave per year to care for a sick child, parent or family member; or for medical, dental or other similar appointments during working hours.
- Penalties for contravention of the Code have been substantially increased. Corporations may be fined up to $25,000. Employers who are not corporations or directors of a corporation may be fined up to $5,000 and employees who violate the Code may be fined up to $2,500. In addition, those guilty of second offences may be penalized by adding an additional fine of not more than the amount set out for such an offence or imprisonment for a term of three (3) months or both.
This amendment to the Labour Standards Code was passed but has not yet been proclaimed.
Employees covered by the Nova Scotia Labour Standards Code will be eligible to take an unpaid leave of absence of up to eight (8) weeks to provide care or support to a family member with a serious medical condition and significant risk of death within twenty six (26) weeks. To be eligible the employee must provide a certificate from a legally qualified medical practitioner stating that the family member has a serious medical condition with a significant risk of death within twenty six (26) weeks. Weeks of leave can only be taken in periods of not less than one week’s duration.
"Family member" is defined as a:
- spouse or common-law partner of the employee,
- child of the employee or a child of the employee’s spouse or common-law partner,
- parent of the employee or a spouse or common-law partner of the parent, and
- any other person prescribed in the regulations.
Note that the definition of "common-law partner" requires cohabitation for a period of at least one year and neither partner being a spouse.
The Vital Statistics Act amendment allows a party to a registered domestic-partnership to participate in both bereavement and compassionate-care leaves under the Code.
Leave may commence on the day the medical certificate is issued or, if the employee has already commenced his or her leave, on the date when the leave first began and ends when the family member dies or the twenty-six (26) week period has expired.
Employers are obligated to provide employees who take this leave with the option of maintaining benefit plans and job protection. Where the employee elects to continue benefit coverage the employer may require the employee to pay both the employer and employee premium amounts.
Effective October 1, 2003, changes were made to the Minimum Wage Order. Notably, the changes increase Nova Scotia's minimum wages as follows:
| Employee Classification and/or Industry | Previous rate of pay | Rate of pay
effective
Oct. 1, 2003 | Rate of pay
effective
April 1, 2004 |
| General rate | $6.00/hr | $6.25/hr | $6.50/hr |
| Inexperienced employees | $5.55/hr | $5.80/hr | $6.05/hr |
| Road building and heavy construction industry | $6.00/hr | $6.25/hr | No Change |
| Logging and forestry operations workers (no fixed work week or unverifiable hours) | $1,175/mth | $1,224/mth | No Change |
| Where board and lodging are provided, maximum deductible amount: | $8.65/day | $9.05/day | No Change |
Bill No. 6 eliminates mandatory retirement in the civil service and amends the Public Service Superannuation Act.
Nova Scotia public servants are currently required to retire at age 65 unless the Governor in Council directs that the employee be continued in the public service for a further period. Bill No. 6 eliminates mandatory retirement and allows employees to work past the age of 65 if they so desire.
Who is affected?
- the Fire Marshal and employees of the Fire Marshal's office
- former employees of NS Power who receive benefits under the Act
- full-time employees of the Board of Trustees of Public Archives of Nova Scotia
- members and employees of the NS Liquor Corporation (excluding temporary employees)
- full-time teachers or professors in the Provincial Normal College or College of Agriculture
- various government run agencies, boards and commissions
- the District Health Authorities
Mandatory retirement in the private sector in Nova Scotia remains unaffected by this legislation.
In addition, other legislation has been introduced, but not passed, that significantly impacts workers’ compensation and occupational health and safety. This legislation may become law in spring 2004.
Bill No. 20 makes important changes to the definition of "chronic pain" and amends the Workers' Compensation Act. The bill also alters the fee schedule for fines under the Occupational Health and Safety Act.
- Family members working or living with the employer will receive equal status as workers.
The Act will apply to all employers and workers in any industry unless specifically excluded. Previously, only designated industries were covered.
Chronic pain has been classified as a personal injury that will be individually assessed in accordance with regulations to be created.
The Functional Restoration Program has been eliminated. Previous awards for chronic pain can be re-calculated in accordance with the new regulations up to the later of April 17, 1985 or the date that the worker began suffering chronic pain. The Workers Compensation Board (the "Board") will not collect any overpayment to workers from past awards.
- Permanent-impairment benefits, extended earning-replacement benefits, survivor pensions, dependent-child benefits, and permanent pensions will be indexed at 55% of the change in CPI rather than 50%.
The Board will be required to set aside funds for and maintain the Accident Fund so that the improvements to benefits can be paid without unfair burden on employers.
The Board, Chief Appeal Commissioner, and Chief Worker Advisor must now report on their monitoring for compliance with the Act.
The Board will hold an annual general meeting open to the public.
The Chief Worker Advisor shall also report to the Deputy Minister of Environment and Labour.
- The Medical Review Commission has been eliminated.
Worker Advisors can now access any file maintained by WCB with the worker’s consent.
- The Tribunal can now, with the consent of all participants to an appeal, correct an error of jurisdiction, a breach of a duty of natural justice, or a breach of a duty of fairness rather than just typographical or clerical errors in its decisions.
The Occupational Health and Safety Division no longer has to promote or conduct studies and research projects in the field of Occupational Health and Safety.
The Division will report annually to the Deputy Minister of Environment and Labour on compliance with the OHSA.
New OHSA Maximum Fines:
- First offence: $250,000
- Second or subsequent offence: $500,000
- For additional days offence continues (first offence): $25,000
- For additional days offence continues (second or subsequent offence): $50,000
This bill will substantially rework the Occupational Health and Safety regime in the Nova Scotia offshore.
NOTE: These Acts received first reading only in the Nova Scotia House of Assembly. The Fall session of the House concluded October 30, 2003 and the legislation will be submitted to Law Amendments Committee. Subject to changes, we anticipate that this legislation may become law in spring 2004.
The Federal government has also recently created legislation that impacts significantly on labour and employment issues; most notably in the areas of compassionate care and criminal liability for organizations.
Employment Insurance and Canada Labour Code
Federal Bill C-28 received Royal Assent on June 19, 2003 and amends the Employment Insurance Act (EI Act) and the Canada Labour Code to provide compassionate care leave and benefits. Entitlement to these new benefits begins on January 4, 2004.
After January 4, 2004, EI will be available to employees who are absent from work to care for a family member who is gravely ill and has a significant risk of death within six (6) months. Eligibility will require a medical certificate stating that a family member has a serious medical condition with a significant risk of death within six (6) months and that the family member requires the care or support of one or more other family members and 600 hours of insurable employment during the qualifying period. Benefits are available under this new program for a maximum of six (6) weeks.
Canada Labour Code
Employees covered by the Canada Labour Code will be eligible for leave of up to eight (8) weeks to care for family members who are gravely ill. To be eligible, an employee must provide a certificate from a qualified medical practitioner stating that the family member has a serious medical condition with a significant risk of death within twenty-six (26) weeks. The leave entitlement commences from the day the certificate is issued or, if the leave commenced before the certificate was issued, the day the leave actually commenced. The leave ends with the last day of the week in which either the family member dies or expiration of the twenty-six (26) week period following the first day of the week that the leave begins.
Leave may be taken in separate periods of not less than one week’s duration.
"Family member" is defined by both EI and the Canada Labour Code as the:
- employee’s child or the child of the employee’s spouse or common-law partner,
- employee’s spouse or common-law partner,
- employee’s father’s wife or mother’s husband or either parent’s common-law partner.
"Common-law partner" is defined by both EI and the Canada Labour Code as cohabitation for at least one year.
Federal Bill C-45 will amend the Criminal Code to establish criminal liability for individuals who fail to take reasonable steps to prevent workplace accidents. This bill received third reading in the Senate and will soon become law throughout Canada.
Bill C-45 extends liability to all persons directing work in the workplace. Liability is no longer exclusive to directors and officers and could potentially be extended to directors, officers, foremen, lead hands and co-workers.
This legislation imposes harsher penalties including an increase in fines from $25,000 to $100,000. Employer representatives can be sentenced to a penalty dictated by the Criminal Code for a specific crime (eg. criminal negligence causing death: maximum penalty of life in prison). Additionally, a new fine scheme imposes harsher penalties for those who fall short of the duty of care incumbent on them.
We encourage you to contact any member of the Labour and Employment Law Group listed below with questions about the contents of this Client Update and/or any other matters on which they may be of assistance to you.
Client Updates are distributed to our clients and other members of the business community on a variety of current legal developments which we believe may be of interest and importance to our readers. These Client Updates do not constitute specific legal advice and may not address specific aspects of a legal development relevant to readers' circumstances. We encourage you to contact us to discuss your particular situation. The names and contact information for lawyers in your area are found above.
