O.C. 441/2017

December 5, 2017

A.R. 246/2017

December 6, 2017


            The Lieutenant Governor in Council makes the Employment Standards Amendment Regulation set out in the attached Appendix.

            For Information only

Recommended by:          Minister of Labour

Authority:                           Employment Standards Code
                                             (section 138)

 


 

APPENDIX

Employment Standards Code

EMPLOYMENT STANDARDS AMENDMENT REGULATION

1   The Employment Standards Regulation (AR 14/97) is amended by this Regulation.

 

2   Section 1.1 is amended by striking out “2(3)(i)” and substituting “2.1(4)(b)”.

 

3   Section 2 is amended

                               (a)    in subsection (1)(b) by repealing subclauses (viii) and (ix) and substituting the following:

                                   (viii)    a person who is employed by a dealer or adviser as defined in the Securities Act as a representative for the purposes of making trades in securities or derivatives for the benefit of that dealer or adviser,

                                     (ix)    an individual holding an insurance agent’s certificate of authority under section 454 or 470 of the Insurance Act who is compensated for activities performed under that certificate entirely by way of commission income,

                               (b)    in subsection (2) by repealing clauses (b), (e), (j), (k) and (m) and substituting the following:

                                       (b)    a member or candidate within the meaning of the Chartered Professional Accountants Act,

                                       (e)    a person who is registered as a regulated member of, and has a practice permit issued by, the registrar of the Alberta College and Association of Chiropractors, or a professional corporation that is registered on the record of professional corporations of that College and has an annual permit, under the Health Professions Act,

                                        (j)    a person who is registered as a regulated member of, and has a practice permit issued by, the registrar of the College of Podiatric Physicians of Alberta, under the Health Professions Act,

                                       (k)    a person who is registered as a regulated member of, and has a practice permit issued by, the registrar of the College of Alberta Psychologists, under the Health Professions Act,

                                      (m)    a member within the meaning of the Agrology Profession Act or a person registered with the Alberta Institute of Agrologists as an agrologist in training, 

 

4   Section 3(g) and (h) are repealed and the following is substituted:

                               (g)    a person who is employed by a dealer or adviser as defined in the Securities Act as a representative for the purposes of making trades in securities or derivatives for the benefit of that dealer or adviser,

                              (h)    an individual holding an insurance agent’s certificate of authority under section 454 or 470 of the Insurance Act who is compensated for activities performed under that certificate entirely by way of commission income,

 

5   Section 4(c) and (d) are repealed and the following is substituted:

                               (c)    a person who is employed by a dealer or adviser as defined in the Securities Act as a representative for the purposes of making trades in securities or derivatives for the benefit of that dealer or adviser,

                              (d)    an individual holding an insurance agent’s certificate of authority under section 454 or 470 of the Insurance Act who is compensated for activities performed under that certificate entirely by way of commission income,

 

6  Section 5.1 is amended by striking out “Section 63(1)” and substituting “Section 63”.

 

7   Section 8 is amended

                               (a)    by repealing clauses (d) and (e) and substituting the following:

                                       (d)    a person who is employed by a dealer or adviser as defined in the Securities Act as a representative for the purposes of making trades in securities or derivatives for the benefit of that dealer or adviser,

                                       (e)    an individual holding an insurance agent’s certificate of authority under section 454 or 470 of the Insurance Act who is compensated for activities performed under that certificate entirely by way of commission income,

                               (b)    by repealing clause (g)(iii) and substituting the following:

                                     (iii)    in a work experience program approved by the Minister of Advanced Education,

 

8   Section 11(3)(c) is repealed and the following is substituted:

                               (c)    an individual 13, 14 or 15 years of age employed when the individual is required to attend school,

 

9   The following is added after section 11:

Faulty work

11.1   For the purpose of section 12(3)(a) of the Act, “faulty work” includes any act or omission of an employee that results in a loss to the employee’s employer.

 

10   Sections 13 and 13.1 are repealed and the following is substituted:

Unauthorized deductions

13   No employer may make a deduction from or receive payment out of earnings for the furnishing, use, repair or laundering of any uniforms or special articles of wearing apparel that the employer requires the employee to wear during the employee’s hours of work.

 

11   The following is added before the heading to Part 3:

Part 2.1
Hours of Work
Averaging Agreements

Definitions

13.2   In this Part,

                               (a)    “averaging agreement” means an hours of work averaging agreement under section 23.1 of the Act;

                              (b)    “averaging period” means the number of weeks over which hours of work will be averaged;

                               (c)    “flexible averaging agreement” means an averaging agreement entered into under section 13.4(1);

                              (d)    “flexible time” means time worked that exceeds the scheduled hours in a day and is not overtime under section 13.41.

Division 1
Hours of Work
Averaging Agreements

Threshold

13.3   An employee is entitled to overtime under an averaging agreement if the employee’s hours of work

                               (a)    exceed

                                        (i)    8 hours on a work day, if the hours scheduled for that day are less than 8 hours, or

                                      (ii)    the daily scheduled hours, if 8 or more hours are scheduled,

                                  or

                              (b)    exceed

                                        (i)    44 hours in a week, or

                                      (ii)    an average of 44 hours in a week, if the averaging period exceeds one week in a multi-week averaging period.

Requirement to pay

13.31(1)  An employee who has worked overtime is entitled to be paid the greater of

                               (a)    the total of the employee’s overtime hours calculated in accordance with section 13.3(a) for the averaging period, and

                              (b)    overtime hours calculated in accordance with section 13.3(b).

(2)  Overtime is payable in accordance with section 8(1) of the Act but if the calculation in subsection (1)(b) exceeds the amounts already paid under subsection (1)(a), the difference in overtime is payable 10 consecutive days after the end of the pay period in which the averaging period ends.

Work schedules

13.32(1)  An averaging agreement between an individual employee and an employer must specify the employee’s work schedule for the averaging period. 

(2)  An averaging agreement affecting a group of employees must specify the work schedule for the employees bound by the agreement.

(3)  An averaging agreement referred to in subsection (2) must not specify more than one work schedule. 

(4)  A work schedule must identify all work days and the number of hours to be worked on each of those work days.

Change in schedule

13.33(1)  An employer may from time to time make a temporary change to an employee’s work schedule that was not requested by the employee, if the change is made with at least 2 weeks’ notice to the employee before the change is to take effect.

(2)  If an employer makes a change under subsection (1) but does not provide the required notice, any hours that exceed 8 hours in a work day that were not set out in the current work schedule are overtime hours for which overtime is payable.

(3)  Subsection (1) does not apply if the employer’s change to the employee’s work schedule is made because

                               (a)    an accident has occurred,

                              (b)    urgent work is necessary, or

                               (c)    of other unforeseen or unpreventable circumstances.

Missed shifts

13.34   If within the same averaging period an employee makes up a shift on an unscheduled work day because of having been absent on a scheduled work day, the employee is entitled to be paid the employee’s regular wage rate and any applicable overtime pay in accordance with the originally scheduled shift.

Termination or no longer bound

13.35   Where, before the end of an averaging period, an employee’s employment terminates or an employee is no longer bound by the agreement before the end of an averaging period, the employee’s overtime hours for that averaging period are to be calculated as if the employee had worked the remainder of the scheduled shifts in the averaging period.

Cancellation

13.36(1)  Either party to an averaging agreement may cancel the agreement with 30 days’ notice given to the other party.

(2)  A group of employees may cancel an averaging agreement only if a majority of the employees to which the agreement applies consent.

(3)  The cancellation of the averaging agreement takes effect at the end of the averaging period in which the 30 days’ notice ends.

(4)  The parties to an averaging agreement may, at any time, renegotiate the agreement, including to cancel the agreement.

(5)  Where a collective agreement provides otherwise, the cancellation of the averaging agreement must be in accordance with the collective agreement.

Copies of agreements

13.37(1)  The employer shall, as soon as possible after entering into an averaging agreement, or an amendment to the agreement, affecting a group of employees but before the commencement of the agreement or the amendment takes effect, post the agreement

                               (a)    on the employer’s website, if the employer has a website, and

                              (b)    in one or more conspicuous places in the workplace where the agreement can be viewed by the employees affected by the agreement.

(2)  In addition to subsection (1), the employer shall,

                               (a)    as soon as possible after entering into an averaging agreement but before the commencement of the agreement, or

                              (b)    when an averaging agreement is amended, as soon as possible after the amendment is entered into but before the amendment takes effect,

provide a copy of the agreement, whether the agreement was with a group of employees or an individual employee, to each employee who is a party to the agreement.

(3)  Where, during the term of an averaging agreement, a new employee becomes bound by the agreement, the employer shall, as soon as possible after the employee becomes bound by the agreement, provide a copy of the agreement to the employee.

(4)  Where a collective agreement provides otherwise, the cancellation of the averaging agreement must be in accordance with the collective agreement.

Division 2
Flexible Averaging Agreements

Flexible averaging agreements

13.4(1)  At the request of an employee who regularly works at least 35 hours per week, and where, if applicable, authorized by a collective agreement, an employer and an employee may enter into a flexible averaging agreement that specifies a daily overtime threshold, which may exceed the employee’s scheduled hours of work.

(2)  An agreement under subsection (1) must specify

                               (a)    a daily overtime threshold not exceeding 10 hours, and

                              (b)    an averaging period not exceeding 2 weeks.

Threshold

13.41   An employee is entitled to overtime under a flexible averaging agreement if the employee’s hours of work

                               (a)    exceed the daily overtime threshold referred to in section 13.4(2)(a), or

                              (b)    exceed

                                        (i)    44 hours in a week, or

                                      (ii)    an average of 44 hours in a week, if the averaging period is 2 weeks.

Work schedules

13.42(1)  A flexible averaging agreement must specify the employee’s work schedule for the averaging period. 

(2)  A work schedule must identify all work days and the number of hours to be worked on each of those work days.

Flexible time

13.43(1)  Where an employee works flexible time, the employer must provide the employee with time off with pay at the regular wage rate.

(2)  Time off under subsection (1) must be taken before the end of the next averaging period.

(3)  If time off with pay is not provided in accordance with subsection (1) or (2), the employer must pay the flexible time owed at the employee’s regular wage rate.

Requirement to pay overtime

13.44(1)  An employee who has worked overtime is entitled to be paid the greater of

                               (a)    the total of an employee’s overtime hours calculated in accordance with 13.41(a) for the averaging period, and

                              (b)    overtime hours calculated in accordance with 13.41(b).

(2)  Overtime is payable in accordance with section 8(1) of the Act but if the calculation in subsection (1)(b) exceeds the amounts already paid under subsection (1)(a), the difference in overtime is payable 10 consecutive days after the end of the pay period in which the averaging period ends.

Time off with pay instead of overtime pay

13.45(1)  The parties to a flexible averaging agreement may also agree that wholly or partly instead of overtime pay, the employer will provide and the employee will take time off with pay.

(2)  An agreement under subsection (1) is deemed to include at least the following provisions:

                               (a)    instead of overtime pay, time off, calculated at 1.5 hours off for each overtime hour, with pay, will be provided, taken and paid at the employee’s wage rate at a time that the employee could have worked and received wages from the employer;

                              (b)    if time off with pay instead of overtime pay is not provided, taken and paid in accordance with clause (a), the employee will be paid overtime pay at an overtime rate of at least 1.5 times the employee’s wage rate for the overtime hours worked;

                               (c)    instead of overtime pay, time off with pay will be provided, taken and paid to the employee within 6 months of the end of the pay period in which it was earned unless the agreement is part of a collective agreement and the collective agreement provides for a longer period within which the time off with pay is to be provided and taken.

Termination of employment or employee
no longer bound

13.46   Where, before the end of an averaging period, an employee’s employment terminates or an employee is no longer bound by the flexible averaging agreement, the employee’s overtime hours for that averaging period are to be calculated as if the employee had worked the remainder of the scheduled shifts in the averaging period.

Cancellation

13.47(1)  Either party to a flexible averaging agreement may cancel the agreement with 30 days’ notice given to the other party.

(2)  The cancellation of the flexible averaging agreement takes effect at the end of the averaging period in which the 30 days’ notice ends.

(3)  The parties to a flexible averaging agreement may at any time, renegotiate the agreement, including to cancel the agreement.

(4)  Where a collective agreement provides otherwise, the cancellation of the flexible averaging agreement must be in accordance with the collective agreement. 

Copy of agreement

13.48   Subject to a collective agreement, an employer shall,

                               (a)    as soon as possible after entering into a flexible averaging agreement but before the commencement of the agreement, and

                              (b)    when a flexible averaging agreement is amended, as soon as possible after the amendment is entered into but before the amendment takes effect,

provide a copy of the flexible averaging agreement to the employee who is a party to the agreement.

 

12   Section 43(1)(a) and (2) are amended by striking out “(AR 290/89)” and substituting “(AR 317/2002)”.

 

13   Section 43.72 is repealed and the following is substituted:

Substitution for Act provisions

43.72(1)  For persons to whom this Division applies, this Division applies in substitution for sections 16, 17, 20 and 21 of the Act.

(2)  Persons to whom this Division applies are exempted from the application of section 23.1 of the Act.

 

14   The following is added after Division 10:

Division 11
Farming and
Ranching Operations

Application of Division

43.8   This Division applies to employees and employers to which section 2.1(1) of the Act applies.

Substitution for Act provisions

43.81   For persons to whom this Division applies, this Division applies in substitution for sections 19, 28 and 29 of the Act.

Days of rest

43.82   Every employer must allow each employee at least 4 days of rest in each period of 28 consecutive work days.

General holiday pay – not working
on the general holiday

43.83   If an employee does not work on a general holiday, the employer shall pay the employee general holiday pay of an amount that is at least 4.2% of the employee’s wages, vacation pay and general holiday pay earned in the 4 weeks immediately preceding a general holiday.

General holiday pay – working

43.84   If an employee works on a general holiday, the employer shall pay the employee an amount that is at least the employee’s wage rate multiplied by the number of hours worked that day, and

                               (a)    provide the employee with one day’s holiday on a day that would normally be a work day for the employee, to be taken within 30 days of the general holiday or at a later time agreed to, in writing, by the employer and employee, and pay the employee general holiday pay in an amount that is at least 4.2% of the employee’s wages, vacation pay and general holiday pay earned in the 4 weeks immediately preceding the general holiday on which the employee worked, or

                              (b)    provide the employee with general holiday pay of an amount that is at least 4.2% of the employee’s wages, vacation pay and general holiday pay earned in the 4 weeks immediately preceding the general holiday on which the employee worked.

 

15   The following is added after Part 3:

Part 3.1
Variances and Exemptions

Application for variance or exemption

43.85(1)  An application for a variance or exemption under section 74 of the Act must contain the content and be in the form required by the Director.

(2)  An application for an order to vary or exempt under section 74.1 of the Act must contain the content and be in the form required by the Minister.

Variances under section 74 of the Act

43.86(1)  The Director may issue a variance or exemption with respect to any of the following:

                               (a)    section 16(1) of the Act by extending the maximum hours of work from 12 consecutive hours to no more than 16 consecutive hours;

                              (b)    section 19(2) of the Act by extending the maximum period of 24 consecutive work days to a number of days the Director considers appropriate in the particular circumstances;

                               (c)    section 23.1 of the Act by extending the averaging period to no longer than 26 weeks;

                              (d)    section 11(1) of this Regulation by reducing the minimum hours of pay to not less than 30 minutes but not more than 2.5 hours.

(2)  Where the Director issues a variance referred to in subsection (1)(a), the Director may also extend the maximum scheduled daily hours of work from 12 hours per day to no more than 16 hours per day under section 23.1(3)(d)(i) of the Act.

(3)  Before issuing a variance, the Director shall consider the following:

                               (a)    the applicant’s compliance history relating to employment standards legislation and occupational health and safety legislation;

                              (b)    the rationale for the request;

                               (c)    whether there is support for the proposed variation or exemption by

                                        (i)    bargaining agents, if any, representing employees to which the application relates, and

                                      (ii)    where employees are not represented by a bargaining agent, the employees to which the application relates;

                              (d)    any effect the variance could have on the safety, health or welfare of the public or the employees to which the application relates.

(4)  If a variance or exemption is issued under this section, it may only be to the extent necessary to avoid serious interference with the ordinary working of the employer’s business, undertaking or other activity.

Notice to employees and employers of
orders under section 74.1 of the Act

43.87(1)  Before making an order to vary or exempt the application of one or more provisions of the Act or this Regulation under section 74.1 of the Act, the Minister shall consider the following:

                               (a)    the applicant’s employment standards and occupational health and safety compliance history;

                              (b)    the rationale for the request;

                               (c)    whether there is support for the proposed variation or exemption by

                                        (i)    bargaining agents, if any, representing employees to which the application relates, and

                                      (ii)    where employees are not represented by a bargaining agent, the employees to which the application relates.

(2)  The Minister shall determine, on a case by case basis, how affected employers and employees, and the bargaining agents if applicable, are to be notified of the Minister’s order to vary or exempt the application of one or more provisions of the Act or the regulations or to amend or revoke an order to vary or exempt.

 

16   Part 5 is repealed and the following is substituted:

Part 5
Employment of Individuals
Under 18 Years of Age

Artistic endeavours

51   For the purposes of section 65 of the Act, “artistic endeavour” means work in

                               (a)    recorded entertainment, such as film, radio, video or television, including television and radio commercials,

                              (b)    voice recording for video and computer gaming, and

                               (c)    live performances, including theatre and musical performances.

13 and 14 year olds

52(1)  This section applies in respect of individuals who are 13 and 14 years of age.

(2)  No employer may employ an individual

                               (a)    for longer than 2 hours outside of normal school hours on a day during which the individual is required to attend school, or

                              (b)    for longer than 8 hours on a day during which the individual is not required to attend school.

(3)  During the period of time from 9:00 p.m. to the following 6:00 a.m., no employer may employ an individual and no individual may work in any employment.

15, 16 and 17 year olds

53(1)  During the period of time from 9:00 p.m. to 12:01 a.m., no employer may employ an individual who is 15, 16 or 17 years of age and no such individual may work in any employment on or in connection with any of the following premises unless the individual works with and is in the continuous presence of at least one other individual who is at least 18 years old:

                               (a)    the premises of any retail business selling

                                        (i)    food or beverages, whether alcoholic or not, or

                                      (ii)    any other commodities, goods, wares or merchandise;

                              (b)    the premises of a retail business in which gasoline, diesel fuel, propane or any other product of petroleum or natural gas is sold;

                               (c)    a hotel, motel or other place that provides overnight accommodation to the public.

(2)  During the period of time from 12:01 a.m. to 6:00 a.m., no employer may employ an individual who is 16 or 17 years of age and no such individual may work in any employment on or in connection with any of the premises specified in subsection (1).

(3)  With respect to the employment of an individual who is 16 or 17 on premises not specified in section 53(2) during the period of time from 12:01 a.m. to 6:00 a.m., no employer may employ an individual and no individual may work in any employment unless

                               (a)    a parent or guardian of the individual gives the prospective employer written consent to the employment, and

                              (b)    during the employment the individual works with and is in the continuous presence of at least one individual who is at least 18 years old.

(4)  During the period of time from 12:01 a.m. to 6:00 a.m., no employer may employ an individual who is 15 years of age in any employment and no such individual may work in any employment.

(5)  Section 65.3(2) of the Act does not apply to a work experience program approved by the Minister of Advanced Education or the Minister of Education.

Consultation on light work

54(1)  For the purpose of establishing a list of the types of employment that are light work for the purpose of Part 2, Division 9 of the Act, the Director shall, in the manner determined by the Director, consult with any individuals or organizations that the Director considers may have an interest in or be affected by the types of employment to be considered light work, including employers, individuals under 18 years of age, parents, government departments, unions and labour advocacy organizations.

(2)  The Director shall determine

                               (a)    the frequency of future consultations which must be no less than every 3 years, and 

                              (b)    the manner in which the consultation is to occur.

Permit conditions

54.01  A permit issued under this Part with respect to an individual who is 12 years old or younger must include a condition that the employer must pay the individual for a minimum number of hours of work determined by the Director.

Other conditions

54.02(1)  The Director is authorized to impose conditions on the employment of an individual who is under 18 years of age whenever the Director considers it necessary to do so.

(2)  The employer of an individual referred to in subsection (1) who is subject to the conditions shall comply with them.

 

17   The heading to Part 5.1 is repealed and the following is substituted:

Part 5.1
Job-protected Leaves

 

18   Section 54.1 is amended

                               (a)    by repealing subsection (1) and substituting the following:

Classes of persons included in the definition
of family member

54.1(1)  In this section,

                                       (a)    “adult interdependent partner” does not include a spouse or common‑law partner;

                                       (b)    “common‑law partner” means a common‑law partner as defined in section 53.9(1)(a) of the Act;

                                       (c)    “partner” means a spouse, a common-law partner or an adult interdependent partner.

                               (b)    in subsection (2) by striking out “53.9(b)(iv)” and substituting “53.9(1)(b)(iv);

                               (c)    by adding the following after subsection (2):

(3)  For the purpose of personal and family responsibility leave, “family member”, in relation to an employee, means

                                       (a)    a spouse or common‑law partner of the employee,

                                       (b)    a child of the employee or a child of the employee’s spouse or common‑law partner,

                                       (c)    a parent of the employee,

                                       (d)    a child of the employee’s parent,

                                       (e)    a grandparent of the employee,

                                       (f)    a grandchild of the employee,

                                       (g)    a current or former foster parent of the employee,

                                       (h)    a current or former foster child of the employee,

                                        (i)    a current or former ward of the employee,

                                        (j)    a current or former guardian of the employee,

                                       (k)    the adult interdependent partner of the employee,

                                        (l)    a child of the employee’s adult interdependent partner, and

                                      (m)    any other person living with the employee as a member of the employee’s family.

(4)  For the purpose of bereavement leave, “family member”  means a family member for the purpose of compassionate care leave.

 

19   The following is added after section 54.1:

Medical certificates

54.2(1)  For the purpose of “medical certificate” as defined in section 1(1)(p) of the Act, a nurse practitioner is authorized for the purpose of that definition, and the authorization applies with respect to the signing of any medical certificate referred to in the Act.

(2)  In this section, “nurse practitioner”, means a regulated member of the College and Association of Registered Nurses of Alberta under the Health Professions Act authorized to use the title “nurse practitioner” who holds a practice permit issued under that Act and who is not under suspension, or an individual who has a similar status under similar legislation in a jurisdiction outside Alberta.

Changes to leaves resulting from EI amendments

54.3   Pursuant to section 138(1)(a.6) of the Act,

                               (a)    the following is substituted for section 46(1) of the Act:

46(1)  The maternity leave to which a pregnant employee is entitled is a period of not more than 16 weeks starting at any time during the 13 weeks immediately before the estimated date of delivery.

                              (b)    the following is substituted for section 50(1) of the Act:

50(1)  Subject to subsection (2), an employer must grant parental leave to an employee as follows:

                                       (a)    in the case of an employee entitled to maternity leave under this Division, other than an employee described in section 46(1.1), a period of not more than 62 consecutive weeks immediately following the last day of maternity leave;

                                       (b)    in the case of a parent who has been employed by the same employer for at least 90 days, a period of not more than 62 consecutive weeks within 78 weeks after the child’s birth;

                                       (c)    in the case of an adoptive parent who has been employed by the same employer for at least 90 days, a period of not more than 62 consecutive weeks within 78 weeks after the child is placed with the adoptive parent for the purpose of adoption.

                               (c)    the critical illness of child leave in Part 2, Division 7.4 of the Act is substituted by the critical illness leave set out in Schedule 3.

 

20   The following is added after section 55:

Part 6.1
Administrative Penalties

Notice of administrative penalty

55.1   A notice of administrative penalty must contain the following information:

                               (a)    the name of the employer that is required to pay the administrative penalty;

                              (b)    the identification of

                                        (i)    the provision of the Act or regulations that was contravened, or

                                      (ii)    the provision of an authorizing or enforcement instrument that was contravened,

                                       whichever is applicable;

                               (c)    a brief description of the nature of the contravention or failure to comply identified under clause (b);

                              (d)    the amount of the administrative penalty, determined in accordance with Schedule 2, including whether the administrative penalty is a daily amount or a one-time amount to address an economic benefit;

                               (e)    the date the notice of administrative penalty is issued;

                               (f)    the date by which the administrative penalty must be paid;

`                             (g)    a statement describing the right to appeal to the appeal body under section 123.1(7) of the Act and particulars of how the appeal is to be made and the time within which it must be made.

Time for payment

55.2(1)  Subject to any stay that is in effect under section 123.1(8) of the Act, an employer that is required to pay an administrative penalty shall pay the amount of the administrative penalty on or before the date specified in the notice of administrative penalty.

(2)  Unless the notice of administrative penalty specifies a later date, the payment must be made within 21 days of the notice being served.

 

21   Section 60(2) is amended

                               (a)    by adding “or 92.1” after “section 92”;

                               (b)    by striking out “revokes, amends or varies” and substituting “revokes or amends”.

 

22   Section 61 is amended

                               (a)    by renumbering it as section 61(1);

                               (b)    by striking out “umpire” wherever it occurs and substituting “appeal body”;

                               (c)    in clause (b) by striking out “umpire’s” and substituting “appeal body’s”;

                               (d)    by adding the following after subsection (1):

(2)  The fee for an appeal of an administrative penalty is 10% of the administrative penalty that was imposed or $100, whichever is greater, but the fee must

                                       (a)    be refunded to the employer if the notice of administrative penalty is revoked,

                                       (b)    be reduced proportionately and the amount of the reduction refunded if the amount payable under the notice of administrative penalty is reduced by the appeal body, or

                                       (c)    be increased proportionately and the amount of the increase be paid by the employer to the Crown if the amount payable under the notice of administrative penalty is increased by the appeal body.

 

23   Section 62 is amended

                               (a)    in subsection (1)

                                        (i)    by striking out “umpire who” and substituting “appeal body that”;

                                       (ii)    by striking out “the umpire” and substituting “the appeal body”;

                               (b)    in subsection (3)

                                        (i)    by striking out “umpire’s” and substituting “appeal body’s”;

                                       (ii)    by striking out “umpire” and substituting “appeal body”.

 

24   The following is added after section 63:

Part 7.1
Service of Documents and
Publication of Documents

Division 1
Service of Documents

Service of documents

63.1(1)  In this section, “recorded mail” means any form of delivery of notices or other documents by mail or courier in which receipt of the notice or other document must be acknowledged in writing by the addressee or another individual present at the addressee’s address.

(2)  If a notice or other document is required to be served under the Act on an officer, the Director or the Registrar, the notice or other document must be served in the manner specified in the document, or as otherwise specified by the officer, Director or Registrar.

(3)  Subject to subsection (2), a notice or other document that is required to be served under the Act may, in addition to any other method provided by law, be served,

                               (a)    in the case of service on an individual,

                                        (i)    by personal service on the individual or by being left for the individual

                                              (A)    at an address provided by the individual pursuant to section 82(3) of the Act with an individual present at that address,

                                              (B)    at the individual’s residence or last known residence or with an individual present at that address who appears to be 18 years of age or older, or

                                              (C)    at the individual’s workplace or last known workplace with an individual who represents that the individual is in charge of that workplace,

                                      (ii)    by ordinary mail or recorded mail sent to the individual

                                              (A)    at an address provided by the individual pursuant to section 82(3) of the Act,

                                              (B)    at the individual’s residence or last known residence, or

                                              (C)    at the individual’s workplace or last known workplace,

                                     (iii)    by fax or e‑mail sent to the individual at a fax number or e‑mail address

                                              (A)    provided by the individual pursuant to section 82(3) of the Act, or

                                              (B)    provided by the individual to an officer, the Director or the Registrar for the purposes of service on that individual,

                                           or

                                     (iv)    as directed by the Court of Queen’s Bench on application,

                              (b)    in the case of service on a corporation,

                                        (i)    by being left

                                              (A)    with a director or officer of the corporation,

                                              (B)    with an individual who represents that the individual is in charge of a place where the corporation carries on business, or

                                              (C)    with an individual at the registered office of the corporation or, for an extra‑provincial corporation, at the office of the attorney of the corporation,

                                      (ii)    by being sent by ordinary mail or recorded mail

                                              (A)    to a place of business of the corporation,

                                              (B)    to the registered office of the corporation,

                                              (C)    to a director of the corporation at the director’s residence or last known residence, or

                                              (D)    to an address designated by the corporation as its address for service under an enactment of Alberta,

                                     (iii)    by fax or e‑mail sent to a fax number or e‑mail address provided by a representative of the corporation to an officer, the Director or the Registrar for service on that corporation, or

                                     (iv)    as directed by the Court of Queen’s Bench on application,

                               (c)    in the case of service on a partnership

                                        (i)    by being left with any partner of the partnership or an individual who represents that the individual is in charge of a place where the partnership carries on business,

                                      (ii)    by being sent by ordinary mail or recorded mail

                                              (A)    to a place of business of the partnership,

                                              (B)    to a partner of the partnership at the partner’s residence or last known residence, or

                                              (C)    to an address designated by a partnership as its address for service under an enactment of Alberta,

                                     (iii)    by fax or e‑mail sent to a fax number or e‑mail address provided by a representative of the corporation to an officer, the Director or the Registrar for service on that corporation,

                                     (iv)    as directed by the Court of Queen’s Bench on application, or

                                       (v)    in the case of a partner that is a corporation, by service on a partner in accordance with clause (b),

                                  or

                              (d)    in the case of service on a lawyer or agent representing an individual, corporation or partnership,

                                        (i)    by personal service on the lawyer or agent at the lawyer’s or agent’s place of business or by being left with an individual who represents that the individual is in charge of that place of business,

                                      (ii)    by ordinary mail or recorded mail sent to the lawyer’s or agent’s place of business,

                                     (iii)    by fax or e‑mail sent to the lawyer’s or agent’s place of business at a fax number or e‑mail address provided by the lawyer or agent, or a representative of the lawyer or agent, or

                                     (iv)    as directed by the Court of Queen’s Bench on application.

(4)  Where it is necessary to prove service of any notice or other document in the course of any proceeding or prosecution under the Act, service is effected

                               (a)    if the notice or other document is served personally or left in accordance with subsection (3)(a)(i), (b)(i), (c)(i) or (d)(i), on the date it is served or left,

                              (b)    if the notice or other document is sent by recorded mail, the date acknowledgment of receipt is signed,

                               (c)    if the notice or other document is sent by fax, on the date the notice or other document is confirmed to have been successfully transmitted,

                              (d)    if the notice or other document is sent by e‑mail, on the date the e‑mail was sent, or

                               (e)    if the notice or other document is sent by ordinary mail,

                                        (i)    7 days from the date of mailing if the notice or other document is mailed in Alberta to an address in Alberta, or

                                      (ii)    subject to subclause (i), 14 days from the date of mailing if the notice or other document is mailed in Canada to an address in Canada,

unless the notice or other document is returned to the sender other than by the addressee, or the addressee proves that he or she did not receive the document.

(5)  Service by mail or recorded mail is not invalid only by reason that

                               (a)    the addressee refuses to accept the mail,

                              (b)    the addressee returns the mail,

                               (c)    in the case of recorded mail, the addressee refuses to take delivery of the recorded mail, or

                              (d)    the addressee no longer resides or is otherwise not present at the address and has not provided the postal service with a current or forwarding mailing address.

Division 2
Publication of Documents

Permits

63.2  The Director shall publish, in a form or manner the Director considers appropriate, the following with respect to a permit issued under the Act:

                               (a)    the name of the employer or the name under which the employer carries on business;

                              (b)    the effective date and the duration of the permit.

Variances, exemptions and orders

63.3(1)  The Director shall publish, in a form or manner the Director considers appropriate, the following with respect to a variance or exemption granted under section 74 of the Act:

                               (a)    the name of the employer or the name under which the employer carries on business;

                              (b)    the provision of the Act or regulation that was varied or exempted;

                               (c)    the effective date and duration of the variance or exemption.

(2)  The Director shall publish, in a form or manner the Director considers appropriate, the following with respect to an order issued under section 74.1 of the Act:

                               (a)    the name of the employer’s association or the names of the employers in a group;

                              (b)    the provision of the Act or regulation that was varied or exempted;

                               (c)    the effective date and the duration of the order.

Enforcement actions

63.4(1)  In this section, “enforcement action” means

                               (a)    any of the following that have been filed as a judgment with the Court of Queen’s Bench under the Act:

                                        (i)    an order of an officer or order of the Director;

                                      (ii)    a decision of an appeal body or a court;

                                     (iii)    a notice of administrative penalty;

                                     (iv)    a director’s certificate referred to in section 112(4) of the Act;

                              (b)    a conviction arising out of a prosecution under section 133 of the Act.

(2)  The Director shall publish, in a form or manner the Director considers appropriate, the following with respect to an enforcement action:

                               (a)    the name of the employer, the name under which the employer carries on business, or the name of the corporate director, as the case may be;

                              (b)    the address of the employer’s business in respect of which the order, decision, notice or certificate was filed;

                               (c)    the provision of the legislation that was contravened;

                              (d)    the unpaid earnings that were the subject of the order, decision, notice or certificate;

                               (e)    the amount of any fine or penalty imposed, if applicable;

                               (f)    the date the order, decision, notice or certificate was filed in the court.

(3)  Where a person subject to an enforcement action referred to in subsection (1)(a) has satisfied the judgment to which the enforcement action applies, the information published under this section with reference to that enforcement action must be removed.

Part 7.2
Miscellaneous Provisions

Group termination notice

63.5(1)   A notice under section 137 of Act is not required if the employees are employed on a seasonal basis or for a definite term or task.

(2)  A notice under section 137(3)(b) of the Act may be given to an affected employee personally or by mail, fax or e-mail to an address provided by the employee for the purposes of communication with that employee.

 

25   Section 66 is amended by striking out “June 30, 2018” and substituting “March 1, 2020”.

Transitional Provisions

26(1)  This section provides for the transitional application of the amendments to the Employment Standards Code made by the Fair and Family-friendly Workplaces Act.

(2)  In subsections (3) to (14),

                               (a)    “Act” means the Employment Standards Code as amended by the Fair and Family-friendly Workplaces Act;

                              (b)    “former Act” means the Employment Standards Code as it read before January 1, 2018.

(3)  An employee entitled to a leave who requests a leave under Part 2, Divisions 7 to 7.6 of the Act on or after January 1, 2018 is entitled to the leave even though the circumstances giving rise to the entitlement to the leave occurred before January 1, 2018.

(4)  Part 3, Division 2 of the Act applies even though the events that are the subject of an inspection, investigation or inquiry arose before January 1, 2018.

(5)  Part 3, Division 3 of the Act applies, except as provided in clauses (a) to (d), even though the events that are the subject of an inspection, investigation or inquiry arose before January 1, 2018:

                               (a)    section 82 of the Act only applies with respect to complaints made on or after January 1, 2018;

                              (b)    if a complaint was filed or an investigation, inspection or inquiry began before January 1, 2018, section 90 of the former Act applies;

                               (c)    if a complaint is filed or an investigation, inspection or inquiry begins after January 1, 2018 but the complaint, investigation, inspection or inquiry relates only to earnings or compensation owing before January 1, 2018, section 90(4) and (5) of the former Act apply;

                              (d)    section 91 of the Act only applies with respect to orders made on or after January 1, 2018.

(6)  Part 3, Division 4 of the Act applies to appeals served on the Registrar on or after January 1, 2018.

(7)  Part 4, Division 2 of the Act applies to demands issued and served on a third party on or after January 1, 2018 even though the  demand relates to an order or decision that was filed before January 1, 2018.

(8)  Part 4.1 of the Act applies to contraventions and failures to comply that occur on or after January 1, 2018.

(9)  Part 5, Division 1 of the Act applies to contraventions and failures to comply that occur on or after January 1, 2018.

(10)  Sections 134, 135 and 136 of the Act apply even though the related complaint, inspection, investigation or inquiry arose before January 1, 2018.

(11)  Section 136.1 of the Act only applies to permits, exemptions and variances issued and enforcement actions taken on or after January 1, 2018.

(12)  Time off with pay earned under section 23(2)(a) of the former Act that has not been provided, taken or paid before January 1, 2018 must be provided in accordance with section 23(2)(a) of the former Act unless the overtime agreement or overtime agreement that is part of a collective agreement provides for a higher rate.

(13)  Sections 65 and 66 of the former Act and Part 5 and section 11(3)(c) of this Regulation do not apply with respect to employees under 18 years of age to which section 2.1(1) of the Act applies.

(14)  Subsection (13) applies until section 44 of the Fair and Family-friendly Workplaces Act comes into force. 

Coming into Force

27(1)  This Regulation, except for section 16, comes into force on January 1, 2018.

(2)  Section 16 comes into force on the coming into force of section 44 of the Fair and Family‑friendly Workplaces Act.

 

28   The Schedule is amended by renumbering it as Schedule 1 and by adding the following after Schedule 1:

Schedule 2

Schedule of Administrative Penalties

The following Table sets out the administrative penalties that may be imposed for a contravention or failure to comply with the provisions of the Employment Standards Code and the Employment Standards Regulation (AR 14/97).

The Director may increase the minimum penalty set out in the Table based on the circumstances of the contravention or failure to comply, including the number of employees who were affected by the contravention or the failure to comply. The amount of any penalty, other than an amount to address economic benefit, must not exceed the amount referred to in section 123.1(3) of the Employment Standards Code.

Under section 123.1(2)(b) of the Employment Standards Code, a one-time amount to address economic benefit may be imposed where the Director is of the opinion that the person has derived an economic benefit directly or indirectly as a result of the contravention or failure to comply. The amount cannot exceed the amount of the economic benefit that was derived as a result of the contravention or failure to comply.

TABLE

Employment Standards Code/Employment Standards Regulation

Minimum Administrative Penalty for
1st contravention or failure to comply

Minimum Administrative Penalty for 2nd contravention of the 1st contravention, or 1st repetition of a failure to comply, within 3 years

Minimum Administrative Penalty for 3rd or subsequent contravention of the 1st contravention, or 2nd repetition of a failure to comply, within 3 years

LEVEL 1 – Minimum Administrative Penalty

Part 2, Divisions 1 to 8, except Divisions 7 to 7.6, of the Act;

Section 79 of Part 3, Division 2 of the Act;

Section 91 of Part 3, Division 3 of the Act; 


$500.00

 

 


$1000.00


$2000.00

Sections 7 to 13 of

Part 2 of the Regulation;

Part 2.1 of the Regulation;

Part 3, Divisions 1 to 11 of the Regulation;

Sections 46 to 50 of Part 4 of the Regulation;

LEVEL 2 – Minimum Administrative Penalty

Part 2, Divisions 7 to 7.6 of the Act;

Section 128 of the Act with respect;


$1000.00


$2000.00


$4000.00

Sections 51 to 54.01

of Part 5 of the Regulation;

Part 5.1 of the Regulation;

Schedule 3 of the Regulation;

LEVEL 3 – Minimum Administrative Penalty

Part 3, Division 1, sections 74 to 74.1 of the Act

● Sections 78 to 78.1 and 81 of Part 3, Division 2 of the Act;


$1500.00

 

 


$3000.00


$6,000.00

Sections 125, 127,

128 and 137 of Part 5, Division 1 of the Act.

Schedule 3

Division 7.4
Critical Illness Leave

Critical illness leave

53.96(1)  In this Division,

                               (a)    “child” means a person who is under 18 years of age;

                              (b)    “common‑law partner” has the same meaning as in section 53.9(1)(a) of the Act;

                               (c)    “family member “ means family member for the purposes of compassionate care leave. 

(2)  Subject to this section, an employee who has been employed by the same employer for at least 90 days and is a family member of a critically ill child or a critically ill adult is entitled to an unpaid leave

                               (a)    of up to 36 weeks for the purpose of providing care or support to the critically ill child, and

                              (b)    of up to 16 weeks for the purpose of providing care or support to the critically ill adult.

(3)  If more than one employee who is employed by the same employer is entitled to leave under this Division with respect to the same critically ill child or critically ill adult, the employer is not required to grant the leave to more than one employee at a time.

(4)  If more than one child of the employee is critically ill as a result of the same event, the period during which the employee may take a leave under this Division

                               (a)    begins on the earlier of the dates specified in subsection (5)(b) and (d) on the first medical certificate issued in respect of any of the children that are critically ill, and

                              (b)    ends on the earliest of the following occurrences:

                                        (i)    the last day of the work week in which the last of the critically ill children dies;

                                      (ii)    the expiry of 36 weeks following the date leave began under clause (a);

                                     (iii)    the expiry of the latest period referred to in subsection (5)(c) on the medical certificates for the critically ill children;

                                     (iv)    the last day of the work week in which the employee ceases to provide care or support to the last of the critically ill children.

(5)  The employee must provide to the employer a medical certificate stating the following:

                               (a)    that the child or adult is critically ill and requires the care or support of one or more family members;

                              (b)    the start date of the period during which the critically child or critically ill adult requires that care or support;

                               (c)    the end date of the period during which the critically ill child or critically ill adult requires that care or support;

                              (d)    if the leave was begun before the certificate was issued, the day leave began.

(6)  The employee must provide a copy of the medical certificate under subsection (5) before commencing leave under this Division unless the employee is unable to do so, in which case the employee must provide the certificate as soon as is reasonable and practicable in the circumstances.

(7)  An employee who wishes to take leave under this Division must give the employer at least 2 weeks’ written notice, which notice must also include the estimated date of the employee’s return to work, unless a shorter notice period is necessary in the circumstances, in which case the notice must be provided as soon as is reasonable and practicable in the circumstances.

(8)  The employee must inform his or her employer of any change in the estimated date of returning to work.

(9)  Subject to subsection (4), leave under this Division may be taken in one or more periods, but no period may be less than one week’s duration.

(10)  Leave under this Division ends on the earliest of the following occurrences:

                               (a)    the last day of the work week in which the critically ill child or critically ill adult, as the case may be, named in the medical certificate under subsection (5) dies;

                              (b)    the period of

                                        (i)    36 weeks of leave under this Division ends, in the case of a critically ill child, or

                                      (ii)    16 weeks of leave under this Division ends, in the case of a critically ill adult;

                               (c)    the period referred to in the certificate referred to in subsection (5)(c) ends;

                              (d)    the last day of the work week in which the employee ceases to provide care or support to the critically ill child or critically ill adult, as the case may be.

Termination of employment

53.961(1)  No employer may terminate the employment of, or lay off, an employee who has started leave under this Division.

(2)  Subsection (1) does not apply if an employer suspends or discontinues in whole or in part the business, undertaking or other activity in which the employee is employed, but the obligation of the employer to reinstate the employee or provide the employee with alternative work in accordance with section 53.963 continues to apply.

Notice to return to work

53.962(1)  If an employee has been on leave under this Division, he or she must provide at least one week’s written notice of the date the employee intends to return to work unless the employer and the employee agree otherwise.

(2)  When an employee returns to work under this section, the employer must

                               (a)    reinstate the employee in the position occupied when the leave started, or

                              (b)    provide the employee with alternative work of a comparable nature at not less than the earnings and other benefits that had accrued to the employee when the leave started.

(3)  An employee who does not wish to resume employment after the leave under this Division ends must give the employer at least 2 weeks’ written notice of the employee’s intention to terminate employment.

Suspension of operations

53.963   If the business, undertaking or other activity of an employer is suspended or discontinued in whole or in part during an employee’s leave under this Division and the employer has not resumed operations when the leave ends, the employer must, if the operation is subsequently resumed within 52 weeks following the end of the leave,

                               (a)    reinstate the employee in the position occupied at the time the leave started at not less than the earnings and other benefits that had accrued to the employee, or

                              (b)    provide the employee with alternative work in accordance with an established seniority system or practice of the employer in force at the time the employee’s leave started, with no loss of seniority or other benefits accrued to the employee.

Leave and vacation conflict

53.964   Notwithstanding section 37(1), if an employee is on leave under this Division on the day by which his or her vacation must be used, any unused part of the vacation must be used immediately after the leave expires or, if the employer and employee agree to a later date, by that later date.