Canadian HR Reporter

CANADIAN HR REPORTER November 28, 2016 18 FEATURES PAYROLL N.B. reviews employment standards rules Changes concern minimum wage, youth employment, workers not covered by act By Sheila Brawn C hanges could be coming to three areas of employ- ment standards in New Brunswick. e province's De- partment of Post-Secondary Education, Training and La- bour is reviewing minimum wage, youth employment and coverage under the Employment Standards Act. In early September, the depart- ment released three discussion papers on the topics and asked for feedback by Oct. 7. While the date for commenting has passed, the proposals put for- ward in the papers provide insight into possible amendments the government may table in coming months. Two years ago, the govern- ment eliminated its Minimum Wage Board and replaced it with a requirement that the Minister of Post-Secondary Education, Train- ing and Labour review the wage rate and determine if any changes are needed. In the discussion paper Statu- tory Review of the Minimum Wage 2016, the department highlights four possible rate-setting choic- es, based on achieving different objectives: •Increase the rate to $11 per hour and index it to inflation after- wards. is would maintain the purchasing power of the prov- ince's lowest-paid employees. •Set the rate by finding an ap- propriate distance between the province's minimum wage and the median wage, and then ad- just the minimum wage rate each year. is would maintain a relative level of pay between the minimum wage and median wage, which is the rate at which half of the workers in the prov- ince earn less and half more. In recent years, the minimum wage rate has lagged behind the median wage. •Raise the minimum wage rate to the average rate in other ju- risdictions in Canada and then adjust it each year to maintain the average. is would ensure New Brunswick's minimum wage does not lag behind other parts of Canada. As of Nov. 1, the average minimum wage rate in all provinces and territories is $11.26 per hour. •Look beyond just raising the minimum wage rate and imple- ment tools or policies, such as a wage top-up program or guaran- teed annual income, that ensure all provincial residents live above a low-income threshold. e paper presents consider- ations and challenges for imple- menting each option. While the paper does not recommend one choice over another, the provin- cial government seems to be lean- ing towards implementing at least the first option. It has previously said it is com- mitted to raising the minimum wage rate, currently at $10.65 per hour, to $11 by the end of 2017, and to indexing it afterwards. When it comes to indexation, the paper recommends that the government tie minimum wage adjustments to annual percent- age changes in the total con- sumer price index (CPI) for New Brunswick and then round it to the nearest five cents. In the case of deflation, it says the rate would not go down. e recommendations are sim- ilar to rules in other provinces that index the minimum wage rate. In another discussion paper, Legislative Review of the Employ- ment Standards Act: Employment Protections for Young Workers, the department looks at how legisla- tion in the province can ensure the jobs young employees hold help them "gain work experience while not interfering with their development and growth." Post-Secondary Education, Training and Labour Minister Donald Arseneault says the re- view will help the department de- termine if its rules are in line with an International Labour Organi- zation convention on minimum working age, which the Canadian government recently ratified, and with the province's own strategy for preventing harm to children and youth. "It is important to ensure that we are protecting all of our workers and are in line with the standards and best practices of other Canadian jurisdictions," he says. The province's Employment Standards Act restricts children under 16 years of age from work- ing in employment that is likely to be harmful to their health, welfare or moral or physical development. In addition, it prohibits them from working more than three hours on a school day and more than six hours on other days. e total number of hours young people can spend going to school and working cannot be more than eight hours per day. e act also prohibits employ- ees under 16 from working be- tween 10 p.m. and 6 a.m. Employers that wish to have young employees work more than the maximum allowable hours or outside of the times permitted must apply to the employment standards director for an exemp- tion permit. e act puts additional restric- tions on children under age 14. Employers are prohibited from hiring them to work in indus- trial enterprises, construction, forestry, hotels and restaurants, automotive service stations, and dance halls, among other places. In the paper, the department proposes a number of changes to youth employment requirements, including: •increasing the age for which re- strictions apply from 16 to 18 •increasing the age for which pro- hibitions apply to certain types of work from 14 to 16 •requiring employers to obtain a parent's or legal guardian's con- sent before employing a youth under age 16 •no longer allowing exemption permits. The department is also con- sidering possible changes to the working hours restrictions for young people. Options include increasing the daily maximum number of hours they can work from three to four on school days and from six to eight on non-school days. e department is also look- ing at prescribing a maximum number of weekly work hours for young people. e department also plans to review the list of restricted indus- tries for young people to ensure it is up to date, and to examine whether to add provisions for en- tertainers under age 16 to the act. The third discussion paper, Coverage under the Employment Standards Act, focuses on groups of workers not currently covered under the act. "e aim of this review is to ensure that vulnerable people are protected and the act is applied fairly and equitably to all employ- ment relationships," states the paper. As part of the review, the de- partment is considering the fol- lowing issues: •It proposes to amend the defini- tion of "employee" in the act to clarify how to determine wheth- er an employment relationship exists. e department says it would base the new definition on common law tests for an employ- ee versus an independent worker (for example, control, organiza- tion, ownership of tools) and best practices in other jurisdictions. •It proposes to cover domestic workers under the act. •It would add a definition of "hours of work" to the act. e definition would clarify that the act would consider time that em- ployees are required to be at their disposal, including during night shifts and times when they may be sleeping, to be hours of paid work. With the department propos- ing to cover domestic workers under the act, the paper says it needs to ensure they are treated the same as employees in other occupations who have to work overnight or be on-call, and who may be sleeping during that time. It notes that employers would be able to apply for an exemption if it caused them special hardship or if they could show they provide employees with other benefits and advantages that would be reasonable compensation for the exemption. It proposes to add minimum standards for room and board to the act. "New Brunswick is the only ju- risdiction in Canada that does not set minimum requirements under employment standards legislation for accommodations or room and board provided by employers to their employees," says the paper. The department proposes adding provisions to the act to prohibit the cost of employer- provided accommodation from reducing an employee's wag- es below the minimum wage rate, and to allow employees to reach an agreement with their employer on whether they will live in employer-provided accommodation. Other proposals include adding a provision stipulating employees who live in employer-provided accommodation would not be required to stay there during rest periods, vacations or leaves. e paper proposes that the act cover all agricultural workers, ex- cept for those who are in a close family relationship with their employer. The act currently applies to most agricultural workers in the province, except for those whose employer employs no more than three workers over a substantial period of the year (meaning six months), excluding those in a close family relationship with the employer. e paper says the current pro- visions may violate human rights prohibitions on discrimination based on social condition, which includes source of income, level of education and occupation. "is exclusion has created an issue of fundamental fairness and equality for long-term employees of farming operations who are not covered by the act, while short- term workers, such as harvesters, are fully covered," it states. A spokesperson for the depart- ment says it is too early to com- ment on whether the government will amend the Employment Stan- dards Act to implement any of the proposals put forward in the dis- cussion papers. e department is now review- ing the feedback it received and will determine whether to rec- ommend any amendments to the government. Sheila Brawn is the editor of Canadian Payroll Reporter. For more informa- tion, visit www.payroll-reporter.com. "It is important to ensure that we are protecting all of our workers." Credit: Lukasz Stefanski (Shutterstock)

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