UTGB Vol 5.pdf - Robson Hall Faculty of Law

I. lN1RODUCTION
We commend the Manitoba government on its decision to launch this Review
of the Manitoba Employment Standards Code. The Discussion Guide 11 alludes to
the fact that this Review is long awaited and, in fact, long overdue. Manitoba
lags far behind other Canadian jurisdictions in some key areas of worker
protection and basic entitlements. Section 62 of the Code is just one example of a
provision that is out of step with other jurisdictions and indeed with the
jurisprudence of the Supreme Court of Canada. 12 It contains a long list of
exceptions to the bare minimum requirement that an employer give one pay
period notice to terminate a person's employment. Notably, subsections (b) and
(c) permit an agreement between employer and employee or the "established
practice" of an employer to trump even that minimum notice requirement. 13
The lack of any graduated notice period in the Manitoba legislation is similarly
surprising and a source of hardship for low;income and low status non.-
unionized workers (cf., for example, the Ontario Employment Standards Act,
which provides for notice up to eight weeks depending on the length of
employment) . 14
The Discussion Guide describes the focus of this Review as related to two broad
themes:
• Reflecting the realities of the modem economy by increasing flexibility,
modernizing protection, coverage and compliance; and
• Reflecting the changing face of today's labour force and the demands of
today's families.
We strongly agree that the Code must be modernized so that it can function
effectively to provide basic protections and entitlements, particularly to
vulnerable workers (often non unionized and lacking in bargaining power). We
also agree that the face of the labour force has changed in recent decades.
Among other changes, women have joined the paid workforce in greater
numbers, yet they continue to do the vast majority of unpaid work (child care,
elder care, and other household work) and continue to predominate in lowwage,
part.-time, temporary and other precarious employment sectors. For these
reasons, and in light of the legal rights and fundamental interests at stake, we
urge the government to make the necessary changes to make the Code a
11
Government of Manitoba, Discussion Guide: Employment Standards for Modem Workplaces
and Modem Families (2005), online: Government of Manitoba .
12
See.Machtinger v. HO], [19921 1 .S.C.R..986 !Machtinger]. This provision has been repealed
as a result of the amendments.
13
These provisions have been repealed as a result of the amendments.
14
A graduated notice period is now provided ins. 61(2) of the amended Code.