Amendments to the Canada Labour Code have now become law.
Thursday, January 24, 2013 - Filed in: General Interest
The changes to the Canada Labour Code include creating a date by which an employer would be required to pay vacation pay; altering the method by which holiday pay is calculated; creating a date by which complaints relating to Part III of the Code would have to be made; setting out the circumstances under which an investigator could suspend or reject complaints made under Part III of the Code; limiting the recovery of wages or monies owing to a 12-month period and the recovery of vacation pay owing to a 24-month period; and creating a system of review for payment orders and notices of unfounded complaints.
Prior to the amendments, the Code did not provide any time line within which an employer is required to pay unpaid vacation pay to an employee after his or her employment is terminated. The amendments will require unpaid vacation pay to be provided to the employee within 30 days from the date on which he or she is no longer employed.
The Code has also been amended to include a definition of "holiday pay" and a method for calculating it. The amendment introduces the term "holiday with pay," which is a holiday on which holiday pay would be payable. Holiday pay will entitle most employees to a payment of at least one-twentieth of wages earned in the four weeks prior to the week in which the general holiday falls, excluding overtime. Where an employee's earnings are, at least in part, commission-based, the employee will be entitled to one-sixtieth of wages, excluding overtime pay, earned in the 12 weeks prior to the week in which the general holiday falls, provided that he or she had completed 12 weeks of continuous employment. An employee would not be entitled to receive holiday pay in the first 30 days of his or her employment.
Employees will be required to file complaints under Part III of the Code within six months of the date the complaint arose. With regard to non-payment of wages or other entitlements, the six-month period will begin on the last day by which the employer was required to pay those amounts. The amendments will provide some discretion to extend the time limits where a complaint was initially made to the wrong forum or where prescribed by regulations under the Code.
An inspector with jurisdiction over Part III complaints will be able to hold complaints in abeyance if it was his or her view that the employee should be required to take other measures to have his or her complaint addressed. Where the inspector suspends a complaint, he or she will have to notify the employee in writing, specifying the measures that the employee must take and setting a deadline for taking those steps. The amendments also provide an inspector with the authority to assist in settling a complaint and allow inspectors to reject complaints on the basis of reasons enumerated in the Act. Enumerated reasons for rejecting a complaint include it being outside the inspector's jurisdiction or being frivolous, vexatious or in bad faith, or there being alternative means available to resolve the dispute.
The Canada Labour Code amendments limit payment orders in respect of wages or other monies owed to the 12-month period beginning on the day a complaint was made, an employee's employment was terminated, or an inspection occurred that prompted an investigation by an inspector. Where the complaint is with regard to vacation pay, the order to pay is limited to the 24-month period immediately prior to the complaint, the termination or the investigation.
The amendments also create a system for the review of a payment order or a notice of unfounded complaint, with reviews to be made by application within 15 days. Upon review, the minister may confirm, rescind or vary the decision subject only to a right of appeal on a question of law or jurisdiction. Reviews will be heard by a referee appointed by the minister. In order to participate in the review process, employers and/or directors will be required to pay the amount indicated in the payment order.