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Changes to Manitoba’s Employment Standards Code take effect January 1, 2012

Manitoba's Employment Standards Code will change in four key areas as of January 1st. According to Labour and Immigration Minister Jennifer Howard, "These changes respond to requests from businesses and employees and are designed to meet the needs of today’s workplace."

The changes focus on four areas of the province's Employment Standards Code:

  • individual flextime agreements,
  • applications for averaging permits from all industries,
  • general holidays in climate-controlled agricultural operations, and
  • changes to termination rules.

Employer-Employee Flextime agreements

As of January 1st, employees and employers can enter into a "Flextime" agreement. This agreement would not need the approval of the Director of the Employment Standards Branch, if several other standards are met.

The standards require the agreement to be in writing and initiated by the full-time employee. Work days must not exceed 10 hours per day and the work week cannot exceed 40 hours. The Flextime agreement can be cancelled by either party with two weeks' written notice. 

Changes to termination rules

Lawyer Dennis Foerster, of Brandon, Manitoba observes that the current inconsistency between the Employment Standards Code and the Common Law "made for some strange situations" that will no longer exist as of January 1st.

Foerster explains: currently, in certain instances, if an incompetent employee's actions are not wilful, the incompetent employee could be fired and the Employment Standards Branch would award the employee pay in lieu of notice. However, if the same matter were taken to court, the court would side with the employer and not award the employee pay in lieu of notice.

The change will bring Manitoba's Employment Standards Code language, with respect to terminations, in line with practices in the other provinces, says Foerster, adding, "it will be a change welcomed by employers."

Averaging Permits for all Industries

Averaging Permits allow employers to average the hours of full-time employees. The averaging is done to calculate overtime. If the weekly average is no more than 40 hours then overtime is not paid.

Currently, the Director of the Employment Standards Branch must take into account, "industry customs or practice" when making a determination on issuing an Averaging Permit.  In practice, retail, restaurants and foodservice operations are not issued the permits.

As of January 1st, the "industry customs or practice" requirement will be removed.

The change will enable restaurants, retail establishments and foodservice operations to be eligible for the averaging permits. Employment Standards will require 75% of the affected employees to agree to the new schedule before considering it for approval.

Changes for climate-controlled agricultural businesses

Effective January 1st, employers in climate-controlled agricultural businesses can chose to pay regular wages for hours worked on a General Holiday. Employers then would provide another day off with General Holiday pay within 30 days of the holiday, or before the employee's next vacation, if the employee agrees.

Prior to the change, this method of paying for General Holidays was only available to employers operating a gas station, hospital, hotel, restaurant, place of amusement, continuously operating plant, or a seasonal industry (excluding construction) or those employing domestic workers.

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