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Proposed Changes to the Employment Standards Act (New Brunswick)

The New Brunswick government is seeking feedback from stakeholders on proposed changes to the Employment Standards Act (“Act”). The proposed changes relate to:

– the statutory minimum wage;

– employment protections for young workers; and

– coverage under the Employment Standards Act.

Minimum Wage

The proposed changes would have the minimum wage indexed to provincial inflation rates as opposed to Canadian inflation rates, as this is thought to provide a better indication of changes to the cost of living in New Brunswick, since the national rates reflect price changes in other parts of the country where some goods have different costs.

Protections for Young Workers

Presently, individuals under the age of 16 are not permitted to work in employment:

– that is or is likely to be unwholesome or harmful to the person’s health, welfare or moral or physical development;

– for more than six hours per day;

– for more than three hours on a school day;

– between 10:00 p.m. and 6:00 a.m.; and

– total hours spent at school and at work must not exceed eight hours per day.

Individuals under the age of 14 are restricted from working in certain industries.

The proposed changes would:

– raise the pertinent age to 18 years old;

– disallow exemptions to the rules pertaining to youth workers;

– increase the age of restrictions from certain industries from under 14 to under 16;

– require the written consent from a parent or legal guardian to employ an individual under the age of 16;

– review the hourly restrictions; and

– review participation in artistic performances to determine whether provision should be added for performers under the age of 16.

The repeal of the exemptions provisions will result in no longer having the flexibility in the system to consider a youth employment situation which may involve exceptional circumstances. The restrictions on the number of hours a person under the age of 16 is permitted to work requires the difficult task of determining the number of hours which is most likely to result in a balance between work, life and school. It also has the potential to reduce income upon which a youth and/or his or her family may rely.

Coverage under the Employment Standards Act

The government is seeking input with respect to three areas of concern:

– clarifying the employment relationship;

– coverage for domestic workers and persons working in a private home; and

– coverage for long-term employees on small farms.

The potential changes to the definition of an employment relationship are of particular interest. At present, there is difficulty in classifying certain individuals as employees or independent contractors. The Act specifically excludes an independent contractor, but the current definition of “employee” in the Act could equally describe the role of an independent contractor in some circumstances.

The courts and labour boards have developed common law tests for determining whether an employment relationship exists. While adding the various factors which have been developed by the courts and labour boards may provide a greater degree of certainty for employers and workers, it could also lead to undue rigidity. In addition, it would be difficult, if not impossible, to create a legislated definition which would apply to all circumstances, particularly in light of the fact-specific nature of any such determination.

The New Brunswick government is accepting submissions from interested parties with respect to these issues until October 7, 2016.

The foregoing is intended for general information only. If you have any questions about how this may affect your business, please contact a member of our Labour & Employment practice group.

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