BILL AND LABOUR STANDARDS: INCREASED …Acanac Inc., the Saskatchewan Court of Queen's Bench recently considered the distinction between an employee and an independent contractor in

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BILL 85 AND LABOUR

STANDARDS: INCREASED

RESPONSIBILITIES AND

LIABILITIES FOR EMPLOYERS

MEGHAN MCCREARY

&

KRISTÉL KRIEL

New Frontiers in Human Rights Law – p. 1

© 2012 MacPherson Leslie & Tyerman LLP

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TABLE OF CONTENTS

I. Introduction ............................................................................................................................... 1

II. Key Changes to The Labour Standards Act ........................................................................... 1

a. Changes in the definition of "employee" ................................................................................................... 1 b. Changes in the definition of "employer" .................................................................................................... 4 c. Meaning of "permit to work" ..................................................................................................................... 5 d. Conditions of employment ......................................................................................................................... 5 e. Hours of work and work schedules ............................................................................................................ 7 f. Meal breaks ................................................................................................................................................ 8 g. Overtime .................................................................................................................................................... 8 h. Deductions and special clothing .............................................................................................................. 10 i. Employer record keeping ......................................................................................................................... 11 j. Leaves from employment......................................................................................................................... 11 k. Layoff and termination ............................................................................................................................ 12 l. Priority of wages ...................................................................................................................................... 12 m. Compliance audit and audit fees .............................................................................................................. 13 n. Time limits for claims to director of employment standards ................................................................... 13 o. Enforcement of extra-provincial judgments ............................................................................................. 14 p. Offences and penalties ............................................................................................................................. 14

III. Status of Bill 85 or The Saskatchewan Employment Act .................................................... 15

IV. Conclusion ............................................................................................................................... 15

Appendix A – Comparison Between Current Provisions of The Labour Standards Act and Proposed Provisions of The Saskatchewan Employment Act (Bill 85) ............................. 16

Bill 85 and Labour Standards: Increased Responsibilities and Liabilities for Employers – p. 1


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BILL 85 AND LABOUR STANDARDS:

INCREASED RESPONSIBILITIES AND LIABILITIES FOR EMPLOYERS

I. INTRODUCTION

Bill 85 or The Saskatchewan Employment Act is intended to consolidate various pieces of

employment legislation across the province – including The Labour Standards Act. Indeed, Bill

85 will entirely repeal The Labour Standards Act, and the new legislation will be referred to as

"Employment Standards." When it does so, the impact on existing labour standards may be

more significant than the news releases and briefings have thus far suggested. This paper

examines some of the key changes introduced by Bill 85. In particular, this paper aims to

highlight those changes that will affect established interpretations of labour standards legislation,

as well as the resulting impact on employers.

II. KEY CHANGES TO THE LABOUR STANDARDS ACT

Bill 85 proposes various amendments to The Labour Standards Act which are particularly

relevant to employers. These include changes to the provisions governing: the definition of

"employee"; the definition of "employer"; the meaning of "permit to work"; conditions of

employment; hours of work and work schedules; meal breaks; overtime; deductions and special

clothing; employer record keeping; leaves from employment; layoffs and terminations; priority

of wages; compliance audit and audit fees; time limits for claims; enforcement of extra-

provincial judgments; and offences and penalties. While reviewing this paper, readers might

find it useful to refer to its Appendix. The Appendix includes a detailed comparison between the

existing provisions of The Labour Standards Act and the proposed provisions of Bill 85 that are

discussed in this paper.

a. Changes in the definition of "employee"

The definition of "employee" in The Labour Standards Act has been significantly widened by

Bill 85. The current definition of employee is limited to "a person entitled to any remuneration

for labour or services performed for an employer". However, Bill 85 contemplates that an

"employee" will include any person receiving or entitled to wages, any person whom employers



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permit to perform work or services normally performed by employees, and any person being

trained by an employer for the employer's business. The ambiguity of this revised definition

creates a risk that employers will be significantly impacted by this change. For example, does

this broad definition now capture both contract workers and volunteers as employees? Further,

because the "training" of persons is not qualified at all, it is unclear how broad the reach of this

definition becomes – for example, would this definition now cover the training of owners of a

franchise, thereby capturing these owners as employees? This expanded definition can also

significantly impact established interpretations of "employees". This is of particular importance

to employers, because the interpretation of who is classified as an "employee" impacts who is

entitled to the benefits and protections of employment standards legislation. As such, this

widened definition can significantly impact employers. It is useful to examine some of the

established interpretations of "employees" to demonstrate the potential impact on employers.

A useful example is the concept of independent contractors. Numerous courts and tribunals have

considered whether a particular worker is an "employee" or an "independent contractor".

Generally, courts and tribunals will consider the following factors: the level of control the

employer has over the worker's activities, whether the worker provides his or her own

equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by

the worker, the degree of responsibility for investment and management held by the worker, the

worker's opportunity for profit, and the parties' intentions.1 All of these factors are balanced to

determine the characterization, and there are various significant legal consequences that flow

from this characterization.

In Sabau v. Acanac Inc., the Saskatchewan Court of Queen's Bench recently considered the

distinction between an employee and an independent contractor in a labour standards context.2

The case involved an individual who provided technical representative services to a company.

Although the individual and the company entered into an "independent contractors agreement",

the individual subsequently claimed that he was an "employee" pursuant to The Labour

1 See, for example: 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59; Wiebe Door Services Ltd. v.

Minister of National Revenue, 1986 CarswellNat 366, [1986] 2 C.T.C. 200 (F.C.A.); Montreal v. Montreal

Locomotive Works Ltd. et al., [1947] 1 D.L.R. 161 (UK PC); Royal Winnipeg Ballet v. M.N.R., 2006 FCA 87. 2 2013 SKQB 21.



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Standards Act, and as such, was entitled to the benefits and protections offered thereunder. The

Director of Labour Standards (the "Director") conducted a wage assessment in response to the

claim, and found that the company owed the individual, as an employee, the sum of $6,625.13.

This assessment was based on s. 60(1) of The Labour Standards Act, which permits the Director

to review outstanding "wages", including overtime, annual holiday pay, public holiday pay, pay

in lieu of notice, and other monetary losses and transportation costs. The company challenged

the Director's decision, and an adjudicator set aside the wage assessment after finding that the

individual was an independent contractor and not an employee. The Director then appealed this

decision to the Court. The Court reviewed the factors discussed above, and confirmed that the

individual was an indeed an "employee" pursuant to The Labour Standards Act. As such, the

Director's wage assessment was reinstated. This decision is an example of an established

interpretation of "employee" that might be impacted by the changes in Bill 85. If the broadened

definition of "employee" in Bill 85 now applies to contractors, such contractors would

automatically be entitled to benefits and protections pursuant to the legislation. Such a result

would significantly extend employer's responsibilities and liabilities pursuant to the legislation.

There are various other examples of similar decisions that might be impacted by a change in the

definition of "employee". For example, in Sikorski v. Tri-Hospital Patient Transport and

Courier Ltd., the Saskatchewan Court of Queen's Bench considered an appeal from the decision

of an adjudicator pursuant to The Labour Standards Act.3 In this case, Labour Standards had

decided that various workers were employees rather than independent contractors, and were thus

entitled to nearly $17,000.00 in wages. The adjudicator overturned this decision on appeal,

holding that the individuals were not employees and as such were not entitled to wages. In

making this determination, the adjudicator specifically considered the definition of "employee"

pursuant to The Labour Standards Act, in addition to the factors outlined above. When the

adjudicator's decision was appealed, the Court dismissed the appeal and upheld the adjudicator's

decision. Notably, the determination of whether these workers were "employees" was based in

part on the definition of "employee" in The Labour Standards Act. If this definition is changed,

3 1995, 136 Sask.R. 61 (Q.B.).



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the resulting interpretations by courts and tribunals could also be changed. Clearly, this would

impact the responsibilities and liabilities of employers.

Another notable change is that Bill 85 proposes a new definition of "wages". This revised

definition could also impact the interpretation and determination of who is seen as an

"employee". In particular, because the definition of "employee" refers to any person receiving or

entitled to "wages", the definition of "wages" directly affects the definition of "employee". The

definition of wages in Bill 85 now includes "monetary compensation for work or services or for

being at the disposal of an employer". This definition is much broader than the current definition

of wages, and suggests a general increase in the scope of what is paid work. This broadened

definition will capture workers in call-in and standby situations, who may not previously been

paid at least the minimum wage to "standby". Further, it is notable that the phrase "being at the

disposal of an employer" is repeated and emphasized throughout Bill 85.

b. Changes in the definition of "employer"

The definition of "employer" within The Labour Standards Act has been amended in Bill 85 to

include the words "in the opinion of the director of employment standards". Adding these words

could have a significant impact on established interpretations of "employer" status pursuant to

labour standards legislation and the standard of review on appeal. Currently, courts and tribunals

determine whether persons fit within the definition of "employer". By making this determination

dependent on the Director's opinion, we question whether courts and tribunals will now have to

defer to the Director's determinations. This addition to the legislation may impact the ability of

employers to challenge the Director's determinations. Another example is useful to demonstrate

this potential impact.

In Youngblut v. Jim & Jaklen Holdings Ltd., the Saskatchewan Court of Queen's Bench

considered a determination regarding the status of a franchisor as an "employer" pursuant to The

Labour Standards Act. In this case, a franchisor became involved with the day-to-day operations

of a franchisee's business when it experienced financial difficulties. Despite this involvement,

the business eventually closed. When the business ceased operations, its employees were

terminated without notice or pay in lieu of notice. As a result, the employees brought claims to

Labour Standards for these lost wages. In response, Labour Standards issued a wage assessment



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indicating that both the franchisor and the franchisee owed the employees nearly $3,000.00 in

pay in lieu of notice. The franchisor challenged this decision to an adjudicator. The adjudicator

held that the franchisor was not an "employer" pursuant to the legislation. This decision was

again appealed to the Court. While the Court found that the franchisor did in fact hold the status

of employer, it was clear that the parties had the ability to appeal the decision of the Director, on

a correctness standard, without the reviewing tribunal or the Court being required to give any

deference to the Director's determination. If, going forward, employer status is expressly subject

to the opinion of the Director, the ability of employers to challenge the Director's determinations

may be significantly limited by Bill 85.

c. Meaning of "permit to work"

Bill 85 proposes to amend the meaning of "permit to work" within The Labour Standards Act.

In particular, the new definition adds the wording "ought reasonably to know" to the meaning of

"permit to work". This change adds to the already stringent requirements for employers in

Saskatchewan in relation to various employment standards matters – as the phrase "permit to

work" is used in various provisions including those relating to overtime, required periods of rest,

and work schedules. While a number of Court and tribunal decisions have previously found that

an employer is liable to pay for time worked when it allows an employee to work without

expressly directing him or her to do so, the effect of this broadened and explicit definition added

into Bill 85 is that employers are now clearly liable to pay wages in a wider set of circumstances

– including in situations where employers "ought to know" rather than actually "know" that

employees are working.

d. Conditions of employment

Bill 85 also proposes various changes to the provisions that govern inconsistencies between

employment contracts and the minimum requirements of labour standards legislation. Firstly,

while the relevant provisions of The Labour Standards Act provide that employment contracts

which deprive employees of the minimum benefits of the legislation are entirely of no force and

effect, Bill 85 contemplates that only the exact provisions of employment contacts which deprive

employees of the minimum standards of the legislation will be held to be void or ineffective.

While the underlying principle is the same, the effect of the revised wording might be that entire



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agreements would not be invalidated because of certain void provisions in those agreements.

Secondly, while Bill 85 appears to maintain the same concept of preferring favourable conditions

of employment wherever possible, the revisions to the wording of the existing provisions could

impact established interpretations of The Labour Standards Act in this regard.

Consider the line of reasoning beginning with R. v. Caxton Printing Ltd. (c.o.b. Centax of

Canada).4 In Caxton Printing and in various subsequent decisions, courts have held that in

determining whether an individual provision in an agreement is less favourable than its

counterpart in The Labour Standards Act, it is not correct to isolate that provision from the rest

of the agreement (thereby treating it as unaffected by other provisions of the agreement) and

then, in a vacuum, make a comparison with The Labour Standards Act. Rather, courts have

determined that there should be a broader basis of comparison – a comparison in which an

individual provision of an agreement, on its face less favourable than its counterpart in The

Labour Standards Act, may be demonstrated to be more favourable when the two provisions are

evaluated in light of other provisions of the agreement and The Labour Standards Act relating to

the same subject matter. This reasoning might be impacted with the revised wording of Bill 85.

An example of such an interpretation of The Labour Standards Act is Black et al v. Regina

Lutheran Housing Corporation, June 4, 1991 (F. Chad Smith). In that case, the Department of

Labour advanced two claims on behalf of a group of nursing home employees, both of which

were rejected on the basis of the reasoning in Caxton Printing. The first complaint related to a

requirement that employees report for work 10 minutes before the commencement of their

scheduled shifts to receive a daily report and their assignments. In dismissing a claim for

payment of wages (at overtime rates) for these 10 minute periods, the adjudicator took into

consideration the fact that the employees received two paid “coffee breaks” during the course of

a shift (whereas none were required by The Labour Standards Act) and that employees received

a half hour paid meal break. The second complaint related to the computation of public holiday

pay - and in particular the 24 hour period utilized by the employer in calculating pay for a given

public holiday. In that respect, the adjudicator noted that the agreement provided employees

4 [1977] 3 W.W.R. 410 (Sask. C.A.).



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with 11 statutory holidays, rather than the 9 statutory holidays required by The Labour Standards

Act. The adjudicator noted that the agreement was clearly more favourable to the employees in

this regard. Further, when considering the reduction in statutory holiday pay in light of the value

of two additional statutory holidays each year, the adjudicator held that it was clear that the terms

of the employment agreement provided more favourable conditions to the employees – as such,

the agreement superseded the legislation.

Similarly, in Regina (City) v. Saskatchewan (Minister of Human Resources, Labour and

Employment), two fire fighters received pay at regular rates for work on public holidays.5 The

fire fighters brought a claim under The Labour Standards Act for pay at time and a half for

working on public holidays as required by section 39(b). That section stated that an employee

who worked on a holiday was entitled to be paid the employee's regular earnings “plus an

additional sum equal to one and one-half times the regular rate of wages for each hour or part

thereof he works”. As in the case discussed above, Justice Maurice noted that the collective

agreement provided for 11 statutory holidays (as compared to the 9 statutory holidays required

under The Labour Standards Act), and that the regular pay for an employee working on a

statutory holiday was based on a 12 hour day even when the employee worked 10 hours or less.

As such, the assessment by Labour Standards for overtime pay was quashed, as the agreement

was held to provide more favourable conditions when viewed as a whole. It is unclear how the

revisions proposed by Bill 85 will impact this line of reasoning, and whether the "entire package"

offered by agreements can still be considered by courts and tribunals.

e. Hours of work and work schedules

Bill 85 further contemplates various changes with respect to hours of work and work schedules,

some of which place increased responsibilities on employers. Firstly, while The Labour

Standards Act currently requires notice of one week to be given to employees before changes are

made to their work schedules, Bill 85 requires notice of one week before the start of a new

weekly schedule that includes the change. This revision of wording has the effect of extending

the notice that is required to be given for such change (from one week to two weeks). Secondly,

5 [1994] S.J. No. 140 (Q.B.).



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while The Labour Standards Act does not require such notices to be in writing in all situations,

Bill 85 requires all such notices to be in writing. This has the potential to impact various

established employer practices. Thirdly, the provisions of Bill 85 now provide that less notice

may be given where the change is "unexpected, unusual, or involves emergency circumstances".

In comparison, The Labour Standards Act currently provides that less notice may be given where

there is a "sudden or unusual occurrence or condition arises that could not, by the exercise of

reasonable judgment have been foreseen by the employer". While the term "emergency

circumstances" was expressly defined in The Labour Standards Act, Bill 85 does not contain a

similar definition. As such, it is unclear what effect these changes will have on established

interpretations. Collectively, the exception to notice requirements for changes to work schedules

appears to be less narrowly defined in Bill 85, and it is thus possible that this revised wording

might be favourable to employers.

f. Meal breaks

The changes to the notice provisions discussed above will also impact employers with regard to

changes in employees' meal breaks. Firstly, employers should note that Bill 85 will introduce

harsh consequences with respect to any failure by employers to give appropriate notice of any

changes to employees' meal breaks. Indeed, failure to give the appropriate notice will result in

30 minutes of overtime to be payable to employees when a meal break is changed without proper

notice. Secondly, the flexibility with regard to notice requirements has been slightly reduced by

Bill 85. In particular, The Labour Standards Act currently permits changes to meal breaks

without notice where: an accident occurs; urgent work is necessary or other unforeseeable or

unpreventable circumstances occur; there is an agreement between the employer and a majority

of employees; it is not reasonable for an employee to take a meal break; or, in other prescribed

circumstances. However, Bill 85 only permits changes to meal breaks without notice in the case

of unexpected, unusual or emergency circumstances, or if it is not otherwise reasonable for an

employee to take a meal break. Employers should be aware of this decreased flexibility.

g. Overtime

Bill 85 also introduces various changes to the overtime provisions in The Labour Standards Act.

One of these changes is that Bill 85 removes the express reference to "8 hour" work days



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currently contained in The Labour Standards Act. The Labour Standards Act provides that

employers will pay employees overtime for hours worked or for being at the disposal of an

employer in excess of 40 hours per week or in excess of 8 hours per day. In comparison, Bill 85

only requires employers to pay employees overtime for hours worked or for being at the disposal

of an employer in excess of 40 hours per week. This amendment is likely to permit employers to

implement "10 hour x 4 day" work weeks without authorization from the Director (such

authorization is currently required by The Labour Standards Act). This is likely a welcome

change to The Labour Standards Act as it affords employers more flexibility. However, with this

increased flexibility comes some ambiguity. Specifically, Bill 85 provides that the 40 hour

maximum for work weeks can consist of either 8 hours in a day for no more than 5 days, or 10

hours in a day for no more than 4 days in a week. Although Bill 85 provides that employers and

employees may agree in certain circumstances to other work arrangements, the "either or"

proposition as it relates to the 40 hour work week might be problematic for employers wishing to

provide regular schedules that vary from the "8 hour x 5 day" or "10 hour x 4 day" work weeks

(for example 6 days of 8, 7, 8, 7, 5 and 5 hours, without incurring overtime).

As it currently stands, Bill 85 also changes the overtime provisions as they relate to managers.

In particular, the overtime provisions of The Labour Standards Act currently do not apply to an

employee who “performs services that are entirely of a managerial character”. In other words,

managers are not entitled to overtime pay. In comparison, Bill 85 does not include a similar

exclusion for managers under the Act. Although Bill 85 contemplates that regulations enacted

pursuant to The Saskatchewan Employment Act can address the managerial exclusion, we do not

know at this point whether the regulations will do so. This will be an important development to

monitor. An example of an interpretation the managerial exclusion might again be useful to

demonstrate the potential impact of this amendment on employers.

As discussed, employees who perform services that are entirely of a managerial character are

exempt from the overtime provisions in The Labour Standards Act. However, the legislation

does not currently define either “services that are entirely of a managerial character” or

“manager”. As such, various courts and tribunals have considered the managerial exemption.

In Westfair Foods Ltd. v. Saskatchewan (Director of Labour Standards Branch), the Court



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considered a claim for unpaid overtime pay advanced by an employee who worked as an

assistant grocery supervisor and as a forklift administrator.6 The Court noted that the managerial

exemption in The Labour Standards Act must be strictly construed to insure rights extended by

The Labour Standards Act are not eroded. This reasoning is based on Machtinger v. HOJ

Industries Limited, a decision in which the Supreme Court of Canada held that labour standards

legislation should be interpreted broadly to extend protection to as many employees as possible.7

This reasoning has led to various established interpretations of the managerial exclusion.

It is useful to briefly consider some of these established interpretations before considering how

they were applied in Westfair Foods. Firstly, the word "entirely" has been interpreted to mean

"continuously" or " from time to time". Secondly, the interpretation of “of a managerial

character” will vary according to the facts of each case and takes into account various factors.

The factors that are generally considered are: supervision and direction of other workers;

discipline of subordinates; evaluation of the performance of subordinates; hiring and promotions

of subordinate staff; independence and discretion in performing assigned duties; supervision of a

collective agreement, where the work place is unionized; negotiation of remuneration; level of

remuneration, vis-à-vis, non-managerial staff; and participation in carrying out the employer’s

budgets and performance requirements. Thirdly, the word “performs” has been interpreted to

mean not only the actual services performed by an employee, but also those services which

reasonably flow from (or which are associated) with the position occupied by the employee. In

applying these established interpretations to the facts in Westfair Foods, the Court held that the

assistant grocery supervisor and forklift administrator positions fell within the managerial

exemption provided in The Labour Standards Act and were not entitled to overtime pay. This

decision is another example of an established interpretation that might be affected by Bill 85

depending on the precise wording of the regulations when they are enacted.

h. Deductions and special clothing

Bill 85 introduces various changes to the deduction provisions in The Labour Standards Act. In

particular, Bill 85 contains an express list of permissible deductions from employees' wages. In

6 136 Sask R. 187 (Q.B.).

7 [1992] 1 S.C.R. 986.



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comparison, The Labour Standards Act only expressly permitted deductions that were "lawful"

or those that related to voluntary purchases by employees. Although many of the deductions

contemplated by Bill 85 are already permissible under The Labour Standards Act, it is likely

helpful to employers to have Bill 85 clearly set out the permissible wage deductions. A

particularly important change for employers to note in this regard is that Bill 85 does not permit

employers to require their employees to purchase special clothing that identifies the employer's

establishment. Bill 85 provides that if such clothing is to be worn by employees, employers are

required to provide the clothing to employees free of charge. While Bill 85 has better defined

some deductions, but the Bill still does not speak to deductions related to breakage or damage of

equipment, cash shortages (such as when a till is short at the end of an employee's shift), theft, or

actions by other parties (such as a customer leaving without paying their bill). These deductions

were not addressed in The Labour Standards Act either, and such deductions continue to remain

a thorny issue for employers.

i. Employer record keeping

Bill 85 also introduces changes to employers' responsibilities with respect to record keeping.

The Labour Standards Act requires employers to keep employees' records with respect to

employment for the full length of the employee's employment as well as for 5 years following

the employee's termination. As such, these provisions require employers to maintain records for

very lengthy periods of time for long service employees. In comparison, Bill 85 requires

employers to maintain records respecting employees for the most recent 5 years of the

employee's employment as well as for 2 years following the employee's termination. This 7 year

retention period applies regardless of the employee's length of employment. As such, Bill 85

could result in favourable changes to the record keeping practices of employers.

j. Leaves from employment

Bill 85 does not significantly change the provisions related to leaves from employment pursuant

to The Labour Standards Act. However, employers should note that two new types of leaves

without pay have been introduced by Bill 85 – leaves for organ donation and recovery, and

leaves for citizenship ceremonies. These two types of leaves have also been recently introduced

in some other Canadian provinces.



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k. Layoff and termination

In general, Bill 85 has only made minor changes to the provisions of The Labour Standards Act

relating to layoff and termination. Although the length of the notice periods provided pursuant to

Bill 85 remain unchanged from those provided pursuant to The Labour Standards Act, employers

should nonetheless note a few key changes.

Firstly, Bill 85 has removed the wording "other than a shortage of work" from the layoff and

termination provisions. The Labour Standards Act currently provides that "[e]xcept for just

cause other than shortage of work, no employer shall discharge or lay off an employee…". In

comparison, Bill 85 has removed the reference to "other than shortage of work", and provides

that "[e]xcept for just cause, no employer shall lay off or terminate the employment of an

employee …". This clarification is sensible, as referring to "shortage of work" as an example of

just cause was confusing (and wrong), as a shortage of work is not grounds for a "just cause"

dismissal.

Secondly, Bill 85 has added a definition of "period of employment" (ie – length of service) to the

layoff and termination provisions of The Labour Standards Act. A "period of employment" is

defined in Bill 85 as "any period of employment that is not interrupted by more than 14

consecutive days". This definition is a welcome addition to legislation, as previously it was

unclear whether a layoff of an employee for a period of 15 days or more "reset the clock" which

measured an employee's length of service. The addition of the definition of "period of

employment" in Bill 85 now provides that if an employee is laid off for more than 14

consecutive days, his or her length of service is "reset" to zero when he or she is called back to

work.

l. Priority of wages

The Labour Standards Act currently requires employers to hold in trust wages due or accruing

due to employees. Even if employers fail to hold such amounts in trust, the provisions of The

Labour Standards Act deem any such amounts to be held in trust. While Bill 85 maintains the

same requirements for such amounts to be held in trust by employers, the deeming provision in

Bill 85 only relates to wages that are due to employees. That is, if employers fail to hold in trust



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amounts accruing due to employees, Bill 85 does not deem such amounts be held in trust. This

raises a potentially problematic result for employers. Particularly, employers do not generally

hold unpaid accruing wages in separate trust accounts for their employees. A strict interpretation

of the proposed wording of Bill 85 might mean that employers are in breach of The

Saskatchewan Employment Act if they fail to hold accruing wages in a separate trust. It is

possible that the regulations enacted pursuant to The Saskatchewan Employment Act will clarify

this issue.

m. Compliance audit and audit fees

Employers will also note that Bill 85 contains a provision specifically permitting the Director to

conduct compliance audits. Such audits can be conducted in respect of employers who regularly

do not meet the requirements of the legislation. In addition, Bill 85 permits the Director to

charge such employers with the fees associated with such audits. Although the specific wording

is a new addition by Bill 85, such audits are likely already permissible pursuant to the general

investigation and inquiry provisions in The Labour Standards Act. However, expressly

addressing such audits is a welcome addition to the legislation as it clarifies the powers and

procedures of the Director.

n. Time limits for claims to director of employment standards

Employers should take particular note of the changes with respect to the time limits for claims.

The time limitation proposed by Bill 85 for claims for unpaid wages is unchanged from before.

Both The Labour Standards Act and Bill 85 provide that claims for unpaid wages must be made

to the Director within one year after the last day on which payment of wages was to be made to

an employee and an employer failed to make payment. The decision of the Saskatchewan Court

of Appeal in Kolodziejski v. Auto Electric Service Ltd. is often cited for the following

interpretation of time limits for claims for unpaid wages:

This section has two limitations. The claim itself must be brought to the Director within a certain

period of time and the Director then can only pursue wages back one year, either to the year

immediately preceding the day in which the claim is made or to wages payable within the last year

of employment depending on the relevant circumstances.8 [emphasis added]

8 (1999), 174 D.L.R. (4th) 525 at para. 29 (Sask. C.A.).



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It is likely that this established interpretation will continue to govern the determination of time

limits for unpaid wage claims. However, Bill 85 has also adds a new provision respecting claims

for other breaches of the legislation, not related to unpaid wages. This provision states that a

complaint respecting an alleged contravention of the legislation must be made to the Director

within twelve months after the date on which the complainant knew, or in the opinion of the

Director, ought to have known of the alleged contravention. As such, the Director's

discretionary opinion is again determinative. As discussed earlier in this paper, the introduction

of this discretion raises issues respecting standard of review. Of particular concern to employers

is the resulting impact on the ability to challenge the Director's determinations. If such wording

reduces the ability to question the Director's decisions, it could significantly impact employers.

o. Enforcement of extra-provincial judgments

Bill 85 also changes the responsibilities of the Director with respect to the enforcement of extra-

provincial judgments. Pursuant to the provisions of The Labour Standards Act, the Director is

required to "take all proper steps to enforce a judgment registered…". In comparison, the

Director is no longer required to take "all proper steps" pursuant to Bill 85, but is now permitted

to issue demands to enforce any orders or judgments. As such, the responsibilities of the

Director in this regard have been apparently reduced in Bill 85.

p. Offences and penalties

Finally, employers should note that the fines and penalties set out in Bill 85 for non-compliance

with the legislation have been significantly increased from those set in The Labour Standards

Act. For example, the maximum fine for the first offence has been increased from $2,000.00 to

$10,000.00; for a second offence committed within 6 years of the first offence the maximum fine

has been increased from $5,000.00 to $25,000.00; and for a third or subsequent offence, the

maximum fine has been increased from $10,000.00 to $50,000.00. These substantial increases

will be of particular relevance to employers, especially in the context of the otherwise expanded

responsibilities and liabilities of employers pursuant to Bill 85.



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III. STATUS OF BILL 85 OR THE SASKATCHEWAN EMPLOYMENT ACT

At the time of writing, Bill 85 has not yet been enacted. Bill 85 received its first reading on

December 4, 2012.9 Before it becomes law, the Bill must pass through various stages at which

the contents of Bill 85 will be discussed, debated, and examined in detail. If you are interested in

learning more about these stages, the Legislative Assembly of Saskatchewan provides a useful

outline of "how laws are made".10

The status of Bill 85 can also be viewed on the Legislative

Assembly of Saskatchewan's website.

IV. CONCLUSION

As this paper demonstrates, Bill 85 contemplates various changes what will now be called

"employment standards" legislation in Saskatchewan. Some of these changes could have a

significant impact on established interpretations of the existing legislation, and on employers.

9 Progress of Bills, Legislature Number 27: Session 2.

10 http://www.legassembly.sk.ca/about/how-law-are-made/

http://www.legassembly.sk.ca/about/how-law-are-made/



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APPENDIX A – COMPARISON BETWEEN CURRENT PROVISIONS OF THE

LABOUR STANDARDS ACT AND PROPOSED PROVISIONS OF THE

SASKATCHEWAN EMPLOYMENT ACT (BILL 85)

The following chart demonstrates various provisions of The Labour Standards Act:

The Labour Standards Act The Saskatchewan Employment Act (Bill 85)

Definition of "employee"

2(d) “employee” means a person of any age who is

in receipt of or entitled to any remuneration for

labour or services performed for an employer;

2-1(e) “employee” includes:

(i) a person receiving or entitled to wages;

(ii) a person whom an employer permits,

directly or indirectly, to perform work or

services normally performed by an

employee;

(iii) a person being trained by an employer

for the employer’s business;

(iv) a person on an employment leave from

employment with an employer; and

(v) a deceased person who, at the relevant

time, was a person described in any of

subclauses (i) to (iv);

but does not include a person engaged in a

prescribed activity;

Definition of "wages"

2(r) “wages” means all wages, salaries, pay,

commission and any compensation for labour or

personal services, whether measured by time, piece

or otherwise, to which an employee is entitled;

2-1 (u) “wages” means salary, commission and any

other monetary compensation for work or services

or for being at the disposal of an employer, and

includes overtime, public holiday pay, vacation pay

and pay instead of notice;

Definition of "employer"

2(e) “employer” means any person that employs one

or more employees and includes every agent,

manager, representative, contractor, subcontractor

or principal and every other person who either:

(i) has control or direction of one or more

employees; or

(ii) is responsible, directly or indirectly, in

whole or in part, for the payment of wages to,

or the receipt of wages by, one or more

employees;

2-1(f) “employer” means any person who employs

one or more employees and includes every agent,

manager, representative, contractor, subcontractor

or principal and every other person who, in the

opinion of the director of employment standards,

either:

(i) has control or direction of one or more

employees; or

(ii) is responsible, directly or indirectly, in

whole or in part, for the payment of wages to,

or the receipt of wages by, one or more

employees;



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Meaning of "permit to work"

8 Where an employer has knowledge that an

employee is working and he does not cause him to

stop working, he shall be deemed to have

permitted such an employee to work within the

meaning of the expression “permit any employee

to work” as used in sections 6 and 7.

2-2 For the purposes of this Part, an employer is

deemed to have permitted an employee to work

within the meaning of the expression “permits to

work” or “permitted to work” if the employer:

(a) knows or ought reasonably to know that the

employee is working; and

(b) does not cause the employee to stop

working.

Conditions of Employment

75(1) No agreement, whether heretofore or

hereafter entered into, has any force or effect if it

deprives an employee of any right, power,

privilege or other benefit provided by this Act.

(2) This Act applies to agreements made in or out

of Saskatchewan with respect to service or labour

performed in Saskatchewan.

2-6 No provision of any agreement has any force or

effect if it deprives an employee of any right,

power, privilege or other benefit provided by this

Part.

72(1) Nothing in this Act or in any order or

regulation made under this Act affects any provision

in any Act, agreement or contract of service or any

custom insofar as it ensures to any employee more

favourable conditions, more favourable hours of

work or a more favourable rate of wages than the

conditions, the hours of work or the rate of wages

provided for by this Act or by any such order or

regulation.

2-7(1) In this section, “more favourable” means

more favourable than provided by this Part, any

regulations made pursuant to this Part or any

authorization issued pursuant to this Part.

(2) Nothing in this Part, in a regulation made

pursuant to this Part or in any authorization issued

pursuant to this Part affects any provision in any

other Act, regulation, agreement, collective

agreement or contract of services or any custom

insofar as that Act, regulation, agreement,

collective agreement, contract of services or

custom gives any employee:

(a) more favourable rates of pay or conditions

of work;

(b) more favourable hours of work;

(c) more favourable total wages; or

(d) more favourable periods of notice of layoff

or termination.

(3) Without restricting the generality of subsection

(2), if an employer is obligated to pay an employee

for time worked on a public holiday or pay an

employee overtime, no provision of any Act,

regulation, agreement, collective agreement or

contract of service and no custom that provides for

the payment of wages for work on a public holiday

or for overtime at less than 1.5 times the

employee’s hourly wage shall be considered more



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favourable to an employee.

Hours of Work and Work Schedules

13.1(1) An employer shall give notice to employees

of:

(a) the time when work begins and ends over a

period of at least one week;

(b) where work is done in shifts, the time when

each shift begins and ends; and

(c) the time when a meal break begins and

ends.

(2) Subject to subsection (2.1), the notice required

by subsection (1):

(a) shall be in writing; and

(b) may be given by posting notices in

conspicuous places where employees have

ready access to read the notices.

(2.1) The notice required by subsection (1) need not

be in writing or posted:

(a) where posting the notice is impractical due

to the small size of the employer’s operation; or

(b) in other cases, where written notice is

impractical.

(3) An employer shall give an employee at least one

week’s notice of a change in the employee’s work

schedule.

(4) On receipt of a written application from an

employer and the employees or a representative of

the employees, the director may give a written

authorization permitting a variation from the

requirements of subsection (1) or (3) where the

director is satisfied that the application of those

provisions would be unsuitable in the

circumstances.

(5) The director may permit a variation from the

requirements of subsection (1) or (3) where the

employer seeks and obtains the written consent to

the variation from the trade union representing the

employees.

(6) Subsections (1) and (3) do not apply where any

sudden or unusual occurrence or condition arises

that could not, by the exercise of reasonable

judgment have been foreseen by the employer.

2-11(1) An employer shall give notice to an

employee of a work schedule containing the

following:

(a) the time when work begins and ends;

(b) if work is done in shifts, the time when each

shift begins and ends; and

(c) the time when a meal break begins and

ends.

(2) The notice required pursuant to subsection (1)

must cover at least one week.

(3) If the days or times when an employee is

required or permitted to work or to be at the

employer’s disposal change, the employer shall

provide to the employee written notice of the

change.

(4) The notice required pursuant to subsection (3)

must:

(a) be given in a schedule that contains the

information required pursuant to subsection (1)

covering at least one week;

(b) be given at least one week before the start

of the schedule;

(c) if the schedule mentioned in clause (a)

changes after the schedule is provided as

required pursuant to clause (b), be given one

week before the employee is required or

permitted to work or to be at the employer’s

disposal; and

(d) be personally given to the employee, posted

in the workplace, posted online on a secure

website to which the employee has access or

provided in any other manner that informs the

employee of the schedule.

(5) An employer may provide notice of less than

one week of a variation to an employee’s schedule

if unexpected, unusual or emergency circumstances

arise.

(6) The director of employment standards may

permit a variation from the requirements of this

section if the employer has obtained the written

consent to the variation from the union that is the

bargaining agent for the employees.



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Definition of "employer"

13.3(1) An employer shall grant to each

employee who works six hours or more an

unpaid meal break of at least 30 minutes within

every five consecutive hours of work except:

(a) where an accident occurs, urgent

work is necessary or other

unforeseeable or unpreventable

circumstances occur;

(b) where the director is satisfied that

the employer and a majority of

employees agree that the employees

may:

(i) take their meal break at

another time; or

(ii) forego their meal break;

(c) where the employer seeks and

obtains the written consent of the trade

union representing the employees;

(d) where it is not reasonable for an

employee to take a meal break; or

(e) in any other case prescribed in

regulations made pursuant to section

84.

(2) Where it is necessary for medical reasons,

an individual employee is entitled to take a

meal break at a time or times other than the

time specified in subsection (1).

(3) Where an employee has worked five hours

and the employer is not required to grant a meal

break to an employee, the employer shall

permit the employee to eat while working.

6 (4) The hours during which an employee is

required or permitted to work or to be at the

disposal of his or her employer are deemed not

to include any meal break allowed to

employees if notice of the meal break is given

in accordance with subsection 13.1(1) and if the

employee is not in fact at the disposal of his or

her employer during the meal break.

2-14(1) Subject to subsections (2) and (4), an

employer shall provide to an employee an

unpaid meal break that is of at least 30 minutes’

duration within every five consecutive hours of

work.

(2) An employer is not required to grant a meal

break pursuant to subsection (1):

(a) in unexpected, unusual or

emergency circumstances; or

(b) if it is not reasonable for an

employee to take a meal break.

(3) If the employer does not grant the meal

break mentioned in subsection (1) and the

employee works five or more consecutive

hours, the employer shall permit an employee

to eat while working.

(4) An employer shall provide to an employee

an unpaid meal break at a time or times

necessary for medical reasons.

2-17(1) An employer shall pay an employee

overtime pay for each hour or part of an hour in

which the employee is required or permitted to

work or to be at the employer’s disposal that

exceeds the hours determined in accordance

with sections 2-18, 2-19 and 2-20.

(2) When calculating overtime pay, an

employer:

(a) is not required to include any meal

break allowed to an employee if:

(i) notice of the meal break is

given in accordance with



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section 2-11; and

(ii) the employee is not at the

disposal of the employer

during the meal break;

…

Overtime Provisions

6(1) Subject to sections 7, 9 and 12, no

employer shall, unless he complies with

subsection (2), require or permit any employee

to work or to be at his disposal for more than

eight hours in any day or 40 hours in any week.

(2) Subject to sections 7 and 9, an employer

who requires or permits an employee to work

or to be at his disposal for more than eight

hours in any day or 40 hours in any week shall

pay to that employee wages at the rate of time

and one-half for each hour or part of an hour in

excess of eight hours in any day, or 40 hours in

any week, during which he requires or permits

the employee to work or to be at his disposal.

…

2-17(1) An employer shall pay an employee

overtime pay for each hour or part of an hour in

which the employee is required or permitted to

work or to be at the employer’s disposal that

exceeds the hours determined in accordance

with sections 2-18, 2-19 and 2-20.

…

2-18(1) Unless an employee is working in

accordance with a modified work arrangement

or in accordance with an averaging

authorization that satisfies the requirements of

section 2-20, an employer shall pay the

employee overtime for each hour or part of an

hour in which the employer requires or permits

the employee to work or to be at the employer’s

disposal for more than 40 hours in a week.

(2) For the purposes of determining the 40 hour

per week maximum pursuant to subsection (1),

the employer may require or permit the

employee to work or be at the employer’s

disposal for either:

(a) eight hours in a day for no more

than five days in a week; or

(b) 10 hours in a day for no more than

four days in a week.

(3) Notwithstanding section 2-7 or subsections

(1) and (2), in the prescribed circumstances and

subject to the prescribed conditions, an

employer and an employee may agree that the

employee may bank overtime hours.

Deductions and Special Clothing

58(1) Notwithstanding any other provision of

this Act, where an employee voluntarily

purchases from his employer any goods, wares

or merchandise, the employer may deduct from

the wages of the employee any amounts from

time to time payable by the employee to the

employer in respect of goods, wares or

merchandise so purchased, and no action, suit

2-36(1) Except as permitted or required

pursuant to this Act, any other Act or any Act

of the Parliament of Canada, an employer shall

not, directly or indirectly:

(a) make any deductions from the

wages that would be otherwise

payable to the employee;



1278905v5


or other proceeding shall be brought or

maintained by the employee against his

employer in respect of any deduction so made.

(2) Notwithstanding any other provision of this

Act, in any action, suit or other proceeding

brought by an employee against his employer

for the recovery of money due for labour or

services, the employer may set off against, or

claim in reduction of, the employee’s demand

any amount payable by the employee to the

employer in respect of goods, wares or

merchandise so purchased.


Act, an employer is entitled to recover by

action any amount payable to him in respect of

goods, wares or merchandise purchased by an

employee in accordance with subsection (1).

59 Nothing in this Act prohibits an employer

from making deductions from the wages of an

employee that may lawfully be deducted.

(b) require that any portion of the

wages be spent in a particular manner;

or

(c) require an employee to return to

the employer the whole or any part of

any wages paid.

(2) In addition to deductions permitted or

required pursuant to law, an employer may

deduct from an employee’s wages:

(a) employee contributions to pension

plans or registered retirement savings

plans;

(b) employee contributions to other

benefit plans;

(c) charitable donations voluntarily

made by the employee;

(d) voluntary contributions by the

employee to savings plans or the

purchase of bonds;

(e) initiation fees, dues and

assessments to a union that is the

bargaining agent for the employee;

(f) voluntary employee purchases from

the employer of any goods, services or

merchandise; and

(g) deductions for purposes or

categories of purposes that are

specified pursuant to subsection (3).

(3) For the purposes of clause (2)(g), the

Lieutenant Governor in Council may specify

purposes and categories of purposes by

regulation or by special order in a particular

case.

(4) No employer shall require an employee to

purchase special clothing that identifies the

employer’s establishment.

(5) An employer who requires an employee to

wear a special article of clothing that identifies

the employer’s establishment shall provide that

special article of clothing free of cost to the

employee.

Employer Record Keeping

70(1) Every employer shall at all times keep

readily available for inspection by the minister

2-38(2) Every employer shall provide the

records mentioned in subsection (1) to an



1278905v5


or his duly authorized representative, in each

place of business operated by him in the

province or in connection with which any

employee is employed or in such other place or

places as are approved by the minister, true and

correct records …

(2) The record of each employee that is

required by this section shall be retained by the

employer for a period of five years following

the termination of the employment of the

employee.

employment standards officer when requested

by the officer.

…

(4) The records that an employer is required to

keep pursuant to this section respecting an

employee must cover the most recent five years

of the employee’s employment.

(5) If an employee’s employment ends, the

employer shall retain the records mentioned in

subsection (4) for a period of two years after

the date on which the employee’s employment

ended.

Leaves from Employment

23(1) Every employee who:

(a) is currently employed and has been

in the employment of her employer for

a total of at least 20 weeks in the 52

weeks immediately preceding the day

on which the requested leave is to

commence.

(b) submits to her employer an

application in writing for leave under

this section at least four weeks before

the day specified by her in the

application as the day on which she

intends to commence the leave; and

(c) provides her employer with a

certificate of a qualified medical

practitioner certifying that she is

pregnant and specifying the estimated

date of birth;

shall be granted by her employer maternity

leave from her employment with the employer

in accordance with subsection (3).

(2) Notwithstanding subsection (1), an

employer shall grant to an employee maternity

leave from her employment with the employer

in accordance with subsection (3) if the

employee meets the requirements of clause

(1)(a) and provides her employer with a

certificate of a duly qualified medical

practitioner:

(a) certifying that the employee is

pregnant, specifying the estimated date

of birth and certifying that there are

bona fide medical reasons that require

2-49(1) Subject to subsections (2) and (7), an

employee who is pregnant is entitled to a

maternity leave of 18 weeks commencing at

any time during the period of 12 weeks

preceding the estimated date of birth, and no

later than the date of birth.

(2) If the actual date of birth is later than the

estimated date of birth, the employee is entitled

to not less than six weeks’ leave after the actual

date of birth.

(3) An employee may extend the leave for a

further period of six weeks if the employee is

unable for medical reasons to return to work

after the expiration of the maternity leave.

(4) An employer shall modify an employee’s

duties or reassign the employee to other duties,

without a decrease in wages or benefits, to

accommodate a pregnancy if:

(a) the employee’s duties or pregnancy

would be unreasonably interfered

with; and

(b) it is reasonably practicable to do

so.

(5) An employer may require an employee to

commence maternity leave not more than 12

weeks before the estimated date of birth if:

(a) the pregnancy of the employee

would unreasonably interfere with the

performance of the employee’s duties;

and

(b) no opportunity exists to modify the

employee’s duties or to reassign the



1278905v5


the employee to cease work

immediately; or

(b) certifying that the employee was

pregnant and that her pregnancy

terminated on a specified date, not

more than 14 days prior to the date of

the certificate, due to a miscarriage or

a stillbirth.

(3) The maternity leave to which an employee

is entitled pursuant to subsections (1) and (2)

shall consist of a period not exceeding 18

weeks commencing at any time during the

period of 12 weeks immediately preceding the

estimated date of birth.

(4) Where:

(a) an employee has failed to comply

with clause (1)(b) but is otherwise

entitled to maternity leave pursuant to

subsection (1); and

(b) the employee has not provided her

employer with a certificate of a duly

qualified medical practitioner

certifying that there are bona fide

medical reasons that require the

employee to cease work immediately;

the employee shall be granted by her employer

maternity leave from her employment with the

employer in accordance with subsection (5).

(5) The maternity leave to which an employee

is entitled pursuant to subsection (4) shall

consist of a period not exceeding 14 weeks

commencing at any time during the period of

eight weeks immediately preceding the


(6) Notwithstanding subsections (3) and (5),

where the actual date of birth is later than the

estimated date of birth, the employee is entitled

to not less than six weeks’ leave after the actual

date of birth.

(7) Where an employee to whom maternity

leave has been granted in accordance with this

section and her employer agree that the portion

of the leave that follows the actual date of birth

should be a period of less than six weeks, the

employer may permit the employee to resume

her employment at the expiration of a period

agreed to by them.

employee to other duties.

(6) An employee whose pregnancy terminates

on a date not more than 12 weeks before the

estimated date of birth due to a miscarriage or a

stillbirth may take a leave pursuant to this

section.

(7) An employer shall grant a maternity leave

in accordance with subsection (8) to an

employee who:

(a) has failed to comply with clause 2-

46(1)(a) but is otherwise entitled to

maternity leave; and

(b) has not provided her employer

with a certificate of a duly qualified

medical practitioner certifying that

there are bona fide medical reasons

that require the employee to cease

work immediately.

(8) Subject to subsection (2), the maternity

leave to which an employee is entitled pursuant

to subsection (7) is to consist of a period not

exceeding 14 weeks commencing at any time

during the period of eight weeks preceding the




1278905v5


24 Where an employee who has been granted

maternity leave by her employer pursuant to

section 23:

(a) is unable, for bona fide medical

reasons, to return to her employment

after the expiration of the maternity

leave; and

(b) provides her employer with a

certificate of a qualified medical

practitioner stating that, for bona fide

medical reasons, she is not able to

return to her employment at that time;

the employer shall grant to her any further

period of leave, not exceeding six weeks, that is

requested by her.

25(1) Where the pregnancy of an employee

would unreasonably interfere with the

performance of the employee’s duties, her

employer may, if no opportunity exists to

modify her duties or reassign her to another job

with no loss of wages or benefits, require her to

commence maternity leave not more than 13

weeks prior to the estimated date of birth.

(2) Where an employer requires an employee to

commence maternity leave pursuant to

subsection (1), the provisions of this Part apply

mutatis mutandis to that maternity leave.

(3) In any prosecution alleging a violation of

subsection (1) the onus shall be upon the

employer to prove that the pregnancy of the

employee would unreasonably interfere with

her duties and that no opportunity exists to

modify the employee’s duties or to reassign the

employee to another job.

26(1) An employer who has granted maternity

leave to an employee pursuant to this Part shall,

at the expiration of the leave, reinstate the

employee in the position occupied by the

employee at the time the leave commenced, or

in a comparable position, with no loss of

accrued seniority or benefits or reduction in

wages.

(2) For the purposes of seniority and rights of

recall, being on maternity leave does not

constitute a break in service, and seniority and

rights of recall continue to accrue while an

employee is taking maternity leave.



1278905v5


(3) Subject to subsection (4), an employee is

entitled to continue participating in any benefit

plan that is prescribed in the regulations for the

purposes of this subsection while taking

maternity leave if the employee pays

contributions required by the plan.

(4) A benefit plan that does not permit the

participation of employees in accordance with

subsection (3) must be amended to permit that

participation not later than three years after the

day on which this section comes into force.

27(1) No employer shall dismiss, lay off,

suspend or otherwise discriminate against an

employee by reason of the fact that she:

(a) is pregnant;

(b) is temporarily disabled because of

pregnancy; or

(c) has applied for maternity leave in

accordance with this Part.

(2) In any prosecution alleging a violation of

subsection (1) the onus shall be upon the

employer to prove that the employee was

dismissed, laid off, suspended or otherwise

discriminated against for good and sufficient

cause.

(3) Where an employer is convicted of failure

to comply with any provision of this Part, the

convicting judge may, in addition to any other

penalty imposed for the offence, order the

employer to allow forthwith the employee such

maternity leave as the employer ought to have

granted to the employee or, if the conviction is

for failing to reinstate an employee in her

former employment after the employee has,

pursuant to this Part, been granted leave, the

convicting judge may order the employer to

reinstate the employee in her employment

under the same terms and conditions in which

she was formerly employed and may further

order the employer to pay to the employee her

wages retroactive to such date as the convicting

judge deems that the employee ought to have

been reinstated in her former employment

under the terms of this Part.

28(1) An employee to whom maternity leave

has been granted pursuant to this Part and who

intends to resume her employment with her

employer after the date of birth shall, at least



1278905v5


four weeks prior to the day on which she

intends to resume her employment, notify her

employer of her intention to do so.

(2) No employer is required to allow an

employee to whom maternity leave has been

granted pursuant to this Part to resume her

employment until after the employee has

complied with subsection (1).

29.2(1) An employer shall grant adoption leave

in accordance with subsection (2) to an

employee who:


in the employment of the employer for

a total of at least 20 weeks in the 52

weeks immediately preceding the day

on which the requested leave is to

commence;

(b) submits to the employer a written

application for leave at least four

weeks prior to the day on which the

child comes into the employee’s care;

and

(c) is to be the primary caregiver of the

adopted child during the period of the

leave.

(2) Adoption leave consists of a period of not

more than 18 weeks commencing on the day

the child becomes available for adoption.

29.1(1) An employer shall grant parental leave

in accordance with subsection (2) to every

employee who:


in the employment of the employer for

a total of at least 20 weeks during the

52 weeks immediately preceding the

day on which the requested leave is to

commence;

(a.1) is a parent of a newborn child or

a newly adopted child; and

(b) submits to the employer a written

application for parental leave:

(i) at least four weeks before

the day specified by the

employee in the application

2-50 An employee is entitled to an adoption

leave of 18 weeks commencing on the date on

which the child comes into the employee’s care

or becomes available for adoption if the

employee is to be the primary caregiver of the

adopted child during the period of the leave.

2-51(1) An employee who is a parent of a

newborn child or a newly adopted child is

entitled to a parental leave of not more than:

(a) 34 weeks, if the employee has

taken a maternity leave or an adoption

leave; or

(b) 37 weeks, in other cases.

(2) A parental leave must be taken during the

period of:

(a) 12 weeks preceding the estimated

date of birth or the estimated date on

which the child is to come into the

employee’s care, as the case may be;

and

(b) 52 weeks following the actual date

of birth or the actual date on which the



1278905v5


as the day on which the

employee intends to

commence parental leave; or

(ii) in the case of an

employee who is taking

maternity leave pursuant to

Part IV, at least four weeks

before the day on which the

employee was scheduled to

return from maternity leave,

which is deemed to be the

day on which the employee

intends to commence parental

leave.

(2) Subject to subsection (5), parental leave

consists of the period described in subsection

(2.1) to be taken during the 12 weeks before the

estimated date of birth or the estimated date on

which the child is to come into the employee’s

care, as the case may be, or the 52 weeks

following the actual date of birth or the actual

date on which the child comes into the

employee’s care.

(2.1) The period of parental leave to which an

employee is entitled is:

(a) not more than 34 consecutive

weeks in the case of an employee who

is entitled to maternity leave pursuant

to Part IV or adoption leave pursuant

to section 29.2; and

(b) not more than 37 consecutive

weeks in the case of an employee who

is not entitled to maternity leave

pursuant to Part IV or adoption leave

pursuant to section 29.2.

(3) An employer shall, on application, grant to

an employee who fails to comply with clause

(1)(b) parental leave commencing on a day

within three weeks after the date of birth of the

child or the day on which the child comes into

the employee’s care, as the case may be, for the

period described in clause (2.1)(a) or (b).

(4) Section 26, subsection 27(3) and section 28

apply, with any necessary modification, to

parental leave pursuant to this section.

(5) An employee who wishes to take leave

pursuant to Part IV and also take leave pursuant

to this section shall take the two leaves

child comes into the employee’s care.

(3) If clause (1)(a) applies, the employee shall

take the parental leave consecutive to the

maternity leave or adoption leave, as the case

may be.



1278905v5


consecutively.

Currently no similar provision

80.1(1) In this section and in section 84:

(a) “prescribed” means prescribed in

the regulations;

(b) “reserve force” means the reserve

force as defined in the National

Defence Act (Canada);

(c) “service” means active service with

the reserve force or training with the

reserve force.

(2) Subject to the regulations, an employee who

has volunteered for service and, as a result, is

required to be absent from his or her

employment is entitled to an unpaid leave of

absence for the employee’s period of service if

the employee:

(a) on or before the prescribed

deadline, gives his or her employer

notice of his or her intention to take an

unpaid leave of absence, including the

date that the leave will begin and the

anticipated date of return to work; and

(b) if his or her employer so requests,

provides to his or her employer a

certificate from an official with the

reserve force that:

(i) states that the employee is

a member of the reserve force

and is required for service;

and

2-52(1) In this section, “organ donation” means

a surgical procedure that involves the removal

of an organ or tissue from the employee for the

purpose of its being transplanted into another

individual.


entitled to a leave for organ donation for the

period, as certified by a duly qualified medical

practitioner, required for the organ donation

and recovery from the procedure.

(3) The maximum leave for an organ donation

and recovery is 26 weeks.

2-53(1) In this section:

(a) “reserve force” means the reserve

force as defined in the National

Defence Act (Canada);

(b) “service” means training with the

reserve force and active service with

the reserve force, including regular

and emergency deployment.


entitled to a reasonable period of leave for the

employee’s period of service with the reserve

force.

(3) The leave pursuant to this section must meet

the prescribed requirements.



1278905v5


(ii) if possible, specifies the

anticipated dates for the

period of service.

(3) An employee who takes an unpaid leave of

absence pursuant to this section shall, on or

before the prescribed deadline preceding the

date the employee intends to return to work,

give notice to his or her employer of his or her

intention to return to work.

(4) If required to do so by his or her employer,

an employee shall provide a notice required by

this section in writing.

(5) An employer shall:

(a) on receiving notice pursuant to

subsection (2), grant to the employee a

reasonable unpaid leave of absence

from employment with the employer

for that period that may be necessary

for the employee to complete the

employee’s period of service; and

(b) on receiving notice pursuant to

subsection (3) and completion of the

leave, allow the employee to continue

employment without loss of any

privilege connected with seniority.

(6) For the purposes of clause (5)(b), seniority

is to be determined at the date the unpaid leave

of absence began.

(7) If an employer is convicted of contravening

this section:

(a) for failing to grant an unpaid leave

of absence, the convicting judge may,

in addition to any other penalty

imposed for the offence, order the

employer to immediately allow the

employee any unpaid leave of absence

for which notice has been given by the

employee; or (b) for failing to allow an

employee to continue employment

after the employee has, pursuant to

this section, been given an unpaid

leave of absence, the convicting judge

shall order the employer:

(i) to allow the employee to

continue his or her former

employment under the same

terms and conditions in which



1278905v5


the employee was formerly

employed; and

(ii) to pay the employee the

wages the employee would

have earned if the employee

had continued his or her

employment after the

expiration of his or her leave

of absence.

80(1) Notwithstanding any other provision of

this Act or the regulations, every employer

shall, upon application to him by his employee,

grant to the employee reasonable leave of

absence from his employment with the

employer to seek nomination as a candidate and

to be a candidate for a municipal, provincial or

federal election or an election for a school

division, or the Conseil scolaire fransaskois and

shall, upon the expiration of the leave of

absence, allow the employee to continue his

employment without loss of any privilege

connected with seniority, such seniority to be

determined at the date the leave of absence

began.


Act or the regulations, every employer shall,

upon application to him by his employee, grant

to the employee reasonable leave of absence

from his employment with the employer, if the

employee has been elected to a municipal,

provincial or federal government or a board of

education, or the Conseil scolaire fransaskois,

for such period during the employee’s term of

office as may be necessary for the employee to

fulfil the duties of his office and shall, upon the

expiration of the leave of absence, allow the

employee to continue his employment without

loss of any privilege connected with seniority,

such seniority to be determined at the date the

leave of absence began.

(3) Where an employer is convicted of failure

to comply with subsection (1) or (2), the

convicting judge may, in addition to any other

penalty imposed for the offence, order the

employer to forthwith allow the employee such

leave of absence as had been requested by the

employee or, if the conviction is for failing to

allow an employee to continue his employment

after the employee has, pursuant to this section,

2-54(1) An employee is entitled to a leave:

(a) to seek nomination as a candidate

for a municipal, provincial or federal

election or an election for a board of

education or the Conseil scolaire

fransaskois, for a reasonable period;

(b) to be a candidate for a municipal,

provincial or federal election or an

election for a board of education or the

Conseil scolaire fransaskois, for a

reasonable period; or

(c) if the employee has been elected to

a municipal, provincial or federal

government or a board of education or

the Conseil scolaire fransaskois, for

the period during the employee’s term

of office that may be necessary.

(2) Subsection 2-48(2) applies to an employee

on a leave pursuant to subsection (1) for a

maximum of 52 weeks.



1278905v5


requested and been given leave of absence, the

convicting judge shall order the employer to

allow the employee to continue his former

employment under the same terms and

conditions in which he was formerly employed

and to pay the employee the wages the

employee would have earned if he had

continued his employment after the expiration

of his leave of absence under subsection (1) or

(2).

29.3(1) In this section:

(a) “immediate family” means a

spouse, parent, grandparent, child,

brother or sister of an employee or of a

spouse;

(b) “spouse” means:

(i) the wife or husband of an

employee; or

(ii) a person with whom an

employee cohabits and has

cohabited as spouses:

(A) continuously for

a period of not less

than two years; or

(B) in a relationship

of some

permanence, if they

are the parents of a

child.

2) An employer shall grant a leave of up to five

working days without pay and without

dismissal or discipline to every employee who,

after three months of continuous employment

with the employer, experiences the death of a

member of his immediate family.

3) Any leave granted pursuant to subsection (2)

must be taken within the period commencing

one week before and ending one week after the

funeral relating to the death in respect of which

the leave is granted.

4) Section 26 and subsection 27(3) apply,

mutatis mutandis, to bereavement leave under

this section.

Currently no similar provision

2-55(1) An employee is entitled to a

bereavement leave of five days in the case of

the death of a member of the employee’s

immediate family.

(2) The leave mentioned in subsection (1) must

be taken within the period commencing one

week before and ending one week after the

funeral relating to the death with respect to

which the leave is granted.

(3) An employee is entitled to a compassionate

care leave of up to eight weeks to provide care

or support to a member of the employee’s

immediate family who has a serious medical

condition with a significant risk of death within

26 weeks from the date the leave commences.

(4) In a period of 52 weeks, an employee is not

entitled to take more than two compassionate

care leaves pursuant to subsection (3).

(5) An employee’s compassionate care leave

pursuant to subsection (3) ends:

(a) if the employee is no longer

providing care or support to the

immediate family member;

(b) on the termination of the 26-week

period mentioned in that subsection; or

(c) on the death of the employee’s

immediate family member.

2-56 An employee is entitled to a leave of one



1278905v5


day to attend a citizenship ceremony to receive

a certificate of citizenship.

Layoff and Termination

43 Except for just cause other than shortage of

work, no employer shall discharge or lay off an

employee who has been in his service for at

least three continuous months without giving

that employee at least:

(a) one week’s written notice, if his period of

employment is less than one year;

(b) two weeks’ written notice, if his period of

employment is one year or more but less than

three years;

(c) four weeks’ written notice, if his period of

employment is three years or more but less than

five years;

(d) six weeks’ written notice, if his period of

employment is five years or more but less than

10 years;

(e) eight weeks’ written notice, if his period of

employment is 10 years or more.

2-57(1) Except for just cause, no employer

shall lay off or terminate the employment of an

employee who has been in the employer’s

service for more than 13 consecutive weeks

without giving that employee written notice for

a period that is not less than the period set out

in the following Table:

Table

Employee’s Period Minimum Period of

of Employment Written Notice

more than 13 consecutive one week

weeks but one year or less

more than one year but two weeks

three years or less

more than three years but four weeks

five years or less

more than five years but six weeks

10 years or less

more than 10 years eight weeks

(2) In subsection (1), “period of employment”

means any period of employment that is not

interrupted by more than 14 consecutive days.

(3) For the purposes of subsection (2), being on

vacation, an employment leave or a leave

granted by an employer is not considered an

interruption in employment.

(4) After giving notice of layoff or termination

to an employee of the length required pursuant

to subsection (1), the employer shall not require

an employee to take vacation leave as part of

the notice period required pursuant to

subsection (1).

Priority of Wages

56(1.1) Notwithstanding any other Act, every

employer shall hold all wages accruing due or

due to an employee in trust for the employee

for the payment of those wages in the manner

and at the time provided under this Act and the

2-61(1) Notwithstanding any other Act, an

employer of an employee shall hold all of the

employee’s total wages due or accruing due to

the employee in trust for the employee for the

payment of those wages in the manner and at



1278905v5


regulations, and, in the event that such wages

are not held in trust, the employer is deemed to

hold an amount equal to the amount of wages in

trust for the employee.

the time provided pursuant to this Part and the

regulations made pursuant to this Part.

(2) If total wages are not held in trust as

required pursuant to subsection (1), the

employer is deemed to hold an amount equal to

the amount of the total wages in trust for the

employee.

Compliance Audit and Audit Fees

67 The minister or any person appointed by

him for the purpose may conduct an inquiry or

investigation into any matter or thing deemed

by the minister to be advisable for the proper

administration of this Act and, for the purpose

of conducting any such inquiry or investigation,

the minister or person acting under the

authority of the minister has all the powers of

commissioners appointed under The Public

Inquiries Act.

2-82(1) If the director of employment standards

is satisfied that an employer has been regularly

breaching the provisions of this Part, the

regulations made pursuant to this Part, any

authorization issued pursuant to this Part or any

Acts or regulations mentioned in subsection 2-

77(1), the director may require that a

compliance audit be conducted:

(a) by an employment standards

officer; or

(b) by a person who the director is

satisfied has the necessary skills to

conduct the audit.

(2) Section 2-79 applies, with any necessary

modification, to a compliance audit conducted

in accordance with this section.

(3) If the compliance audit discloses multiple

breaches of the requirements imposed on

employers by this Part, the regulations made

pursuant to this Part, any authorization issued

pursuant to this Part or any Acts or regulations

mentioned in subsection 2-77(1), the director of

employment standards may charge the

employer:

(a) a prescribed amount for an audit

conducted by an employment

standards officer; or

(b) the amount charged by the person

appointed in accordance with clause

(1)(b).

(4) Section 2-81 applies, with any necessary

modification, to the enforcement of the amount

charged pursuant to this section.

Time Limits for Claims

68.4(1) A claim pursuant to this Act with

respect to unpaid wages must be made to the

director or a duly authorized representative of

2-85(1) A claim pursuant to this Part with

respect to unpaid wages must be made the

director of employment standards within 12



1278905v5


the minister within one year after the last day

on which payment of wages was to be made to

an employee and an employer failed to make

payment.

(2) Recovery of wages pursuant to this Act is

limited:

(a) to wages that became payable in

the year immediately preceding the

day on which the claim was made to

the director or duly authorized

representative of the minister; or

(b) where the employment with the

employer has ceased, to wages that

became payable within the last year of

employment with that employer.

months after the last day on which payment of

wages was to be made to an employee and an

employer failed to make payment.

(2) Recovery of wages pursuant to this Part is

limited:

(a) to wages that became payable in

the 12 months preceding the day on

which the claim was made to the

director of employment standards; or

(b) if the employment with the

employer has ended, to wages that

became payable within the last 12

months of employment with that

employer.

(3) Other than with respect to a claim

mentioned in subsection (1), a complaint

respecting an alleged contravention of this Part,

the regulations made pursuant to this Part, any

authorization issued pursuant to this Part or any

Acts or regulations mentioned in subsection 2-

77(1) must be made to the director of

employment standards within 12 months after

the date on which the complainant knew or, in

the opinion of the director, ought reasonably to

have known about the alleged contravention.

Enforcement of Extra-provincial Judgments

78(1) Notwithstanding any other Act, a

certified copy of a final order or judgment for

the payment of wages made by any court or

statutory authority in any other province or

territory of Canada may be registered as a

judgment in the office of a local registrar of the

Court of Queen’s Bench and shall thereupon be

enforceable in the same manner as any other

judgment or order of the court.

(2) The department shall take all proper steps to

enforce a judgment registered in accordance

with subsection (1).

(3) A copy of any order made by a court or

statutory authority mentioned in subsection (1)

purporting to be certified as a true copy of the

presiding officer, judge or secretary shall be

received in any court in the province as

evidence of the order without proof of the

appointment or signature of the person so

certifying.

2-88(1) Notwithstanding any other Act, the

director of employment standards may file a

certified copy of a final order or judgment for

the payment of wages made by any court or

statutory authority in any other province or

territory of Canada in the office of a local

registrar of the Court of Queen’s Bench.

(2) A copy of any order made by a court or

statutory authority mentioned in subsection (1)

purporting to be certified as a true copy by the

presiding officer, judge or secretary of the court

or statutory authority is admissible in evidence

as proof of the order without proof of the

appointment or signature of the person so

certifying.

(3) On being filed pursuant to subsection (1),

the final order or judgment is enforceable in the

same manner as any other judgment or order of

the Court of Queen’s Bench.

(4) For the purpose of enforcing orders or

judgments mentioned in subsection (3), the



1278905v5


director of employment standards may issue

demands in accordance with section 2-66 and

that section applies, with any necessary

modification, for the purposes of this section.

Offences and Penalties

85(1) Every person who:

(a) fails to comply with or violates any

provision of this Act or of any order,

authorization, directive or regulation

made pursuant to this Act;

(b) with intent to deceive, makes a

false or misleading statement in any

communication, whether in writing or

otherwise, to the minister, the

minister’s duly authorized

representative or an adjudicator; or

(c) interferes with or obstructs the

minister, the minister’s duly

authorized representative or an

adjudicator in the exercise of a power

conferred by this Act or by a

regulation made pursuant to this Act;

is guilty of an offence.

(1.1) Every person who is guilty of an offence

mentioned in subsection (1) is liable on

summary conviction:

(a) subject to clause (b), to a fine of

not more than $2,000 for an offence;

and

(b) in the case of an offence that is

committed within six years after the

person is convicted of any offence:

(i) to a fine of not more than

$5,000 for a second offence;

and

(ii) to a fine of not more than

$10,000 for a third or

subsequent offence.

(2) In any prosecution under this Act, other

than a prosecution for an offence against clause

(a) or (b) of subsection (1), the burden of proof

on the prosecution shall be on a balance of

probabilities and it shall not be necessary for

the prosecution to establish guilt of the accused

beyond a reasonable doubt.

2-91(1) No person shall:

(a) in the case of an employer:

(i) fail to pay an employee:

(A) the wages owing

to the employee in

the time and manner

required pursuant to

this Part, the

regulations made

pursuant to this Part

or any authorization

issued pursuant to

this Part; or

(B) the total wages

to which the

employee is entitled

in accordance with

the employee’s

contract of

employment or with

a collective

agreement that

applies to the

employee;

(ii) take discriminatory action

against an employee for any

reason prohibited by this Part;

(iii) make a deduction from

wages that is not authorized

or allowed by this Part or the

regulations made pursuant to

this Part;

(iv) fail to keep true and

accurate records as required

pursuant to this Part or the

regulations made pursuant to

this Part;

(v) fail to provide a statement

of earnings to an employee

that satisfies the requirements

of this Part or the regulations

made pursuant to this Part; or



1278905v5


(vi) fail to provide records in

the time and manner required

by an employment standards

officer;

(b) intentionally delay or obstruct the

director of employment standards or

an employment standards officer in the

exercise of his or her powers or the

performance of his or her duties;

(c) fail to reasonably cooperate with

the director of employment standards

or an employment standards officer in

the exercise of his or her powers or the

performance of his or her duties;

(d) fail to comply with any provision

of this Part, any regulations made

pursuant to this Part or any

authorization issued pursuant to this

Part.

(2) Every person who contravenes a provision

of subsection (1) is guilty of an offence and

liable on summary conviction:

(a) subject to clause (b), to a fine of

not more than $10,000; and

(b) in the case of an offence that is

committed within six years after the

person is convicted of any offence:

(i) to a fine of not more than

$25,000 for a second offence;

and

(ii) to a fine of not more than

$50,000 for a third or

subsequent offence.

Documents

BILL AND LABOUR STANDARDS: INCREASED …Acanac Inc., the Saskatchewan Court of Queen's Bench recently considered the distinction between an employee and an independent contractor in