Bill 6 - An Act to Amend the Employment Standards Act

BILL 6

An Act to Amend the Employment Standards Act

His Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Section 38.9 of the Employment Standards Act, chapter E-7.2 of the Acts of New Brunswick, 1982, is amended

(a) in subsection (1)

( i) in the portion preceding the definition “foreign worker” by striking out “in this section and in section 38.91” and substituting “in this section and in sections 38.901, 38.902 and 38.91”;

( ii) by adding the following definitions in alphabetical order:

“family member” means, in relation to any person, (membre de la famille)

(a) the spouse of that person,

(b) the parent of that person or of that person’s spouse,

(d) the sibling of that person or of that person’s spouse,

(e) the sibling of a parent of that person or of that person’s spouse,

(f) the child of a sibling of that person or of that person’s spouse,

(g) the first cousin of that person or of that person’s spouse, or

(h) the grandparent of that person or of that person’s spouse.

“foreign worker recruiter” means a person who provides foreign worker recruitment services. (recruteur de travailleurs étrangers)

“foreign worker recruitment services” means services to assist a foreign worker to secure employment in the Province or to assist an employer to secure employment in the Province for a foreign worker, including (services de recrutement de travailleurs étrangers)

(a) finding or attempting to find employment in the Province for a foreign worker,

(b) assisting or advising an employer in the hiring of a foreign worker, and

“spouse” means, in relation to any person, (conjoint)

(a) a person to whom that person is married, or

(b) a person with whom that person cohabits and has cohabited continuously for at least one year in a conjugal relationship.

(b) by repealing subsection (2) and substituting the following:

38.9( 2) Subject to subsection (2.1), an employer who recruits a foreign worker or engages the services of a foreign worker recruiter shall register with the Director in accordance with this section.

38.9( 2.1) The Minister may establish eligibility requirements to be met by the employer in order to apply to be registered.

(d) in subsection (4) by repealing the portion preceding paragraph (a) and substituting the following:

38.9( 4) An employer that meets the eligibility requirements established under subsection (2.1), if any, shall apply to be registered by providing to the Director, in the form and manner required by the Director, the following information:

(e) by adding after subsection (4) the following:

38.9( 4.1) On receiving an application under subsection (4), the Director may approve or refuse the application or place conditions on the registration of an employer.

(f) by repealing subsection (5) and substituting the following:

38.9( 5) A registration is valid for one calendar year from the date the Director approves the application, and the employer shall provide an update of the information provided under subsection (4) each year on or before the anniversary date of the registration.

(g) by adding after subsection (5) the following:

38.9( 5.1) The Director may suspend or revoke the registration of an employer at any time in accordance with the regulations.

38.9( 5.2) An employer whose application to be registered was refused or whose registration has been suspended or revoked may appeal the decision of the Director in accordance with the regulations.

38.9( 5.3) An employer or former employer of a foreign worker shall retain all books, records and documents relating to any foreign worker recruitment services provided by a foreign worker recruiter or the hiring of a foreign worker for a minimum period of three years after the date to which the books, records or documents relate.

38.9( 5.4) An employer shall deliver any of the books, records and documents that are required to be kept under subsection (5.3) to the Director at any time that the Director requires.

(h) by repealing subsection (9).

2 The Act is amended by adding after section 38.9 the following:

Foreign worker recruiter licence

38.901( 1) On and after April 1, 2028, no person shall act as a foreign worker recruiter or engage in foreign worker recruitment services unless that person holds a foreign worker recruiter licence.

38.901( 2) Subsection (1) does not apply to

(a) the Crown in right of the Province, any Crown corporation or any Crown agency,

(b) a person acting in their capacity as an employee of the federal government, a municipal government, a public post-secondary educational institution or any portion of the public service of the Province as specified in Part 1, 2, 3 or 4 of the First Schedule of the Public Service Labour Relations Act,

(c) a family member of a foreign worker who does not charge a fee for the provision of foreign worker recruitment services, or

(d) any person or class of person prescribed by regulation.

38.901( 3) No person shall apply for a foreign worker recruiter licence unless

(a) that person is an individual, and

(b) that person meets the eligibility requirements prescribed by regulation and any requirements established by the Minister.

38.901( 4) An application for a foreign worker recruiter licence shall

(a) be provided to the Director in the form and manner specified by the Director,

(b) contain the following information:

( i) the names and addresses of all the applicant’s partners, affiliates or agents; and

( ii) any other information prescribed by regulation, and

( i) any fees prescribed by regulation, and

( ii) financial security if required by the Director.

38.901( 5) On receiving an application in accordance with subsection (4), the Director may issue a foreign worker recruiter licence to the applicant, subject to the terms and conditions prescribed by the regulations and any additional terms and conditions that the Director considers appropriate.

38.901( 6) The Director may suspend or revoke a foreign worker recruiter licence at any time in accordance with the regulations.

38.901( 7) A person to whom a foreign worker recruiter licence was not issued under subsection (5) or a licence holder whose licence has been suspended or revoked under subsection (6) may appeal the decision of the Director in accordance with the regulations.

38.901( 8) A licence issued under this section is not transferable or assignable.

38.901( 9) A licence shall be issued for a term of no more than three years.

38.901( 10) The Director may require a licence holder to file financial security with the Minister at any time during the term of a licence.

38.901( 11) Financial security filed under subparagraph (4)(c)(ii) or subsection (10) shall be in the amount and in the form prescribed by regulation.

38.901( 12) A licence holder shall retain all books, records and documents relating to any recruitment services provided for a minimum period of three years after the dates to which the books, records or documents relate.

38.901( 13) A licence holder shall deliver any of the books, records and documents that are required to be kept under subsection (12) to the Director at any time that the Director requires.

Public register

38.902( 1) The Minister shall maintain a register of registered employers of foreign workers and foreign worker recruiter licence holders that contains the following information for each registration or licence:

(a) the name and contact information of the registered employer or licence holder;

(b) whether terms and conditions apply to the registration or licence;

(c) whether the registration or licence is suspended or revoked and the date the suspension or revocation took effect; and

(d) any other information prescribed by regulation.

38.902( 2) The register shall be made available to the public in the form and manner that the Minister considers appropriate.

3 Section 38.91 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

38.91( 1) No employer shall require a foreign worker to use an immigration consultant or a foreign worker recruiter as a condition of employment with the employer.

(b) by repealing subsection (2) and substituting the following:

38.91( 2) No employer or foreign worker recruiter shall, directly or indirectly, recover from a foreign worker any cost incurred in recruiting the foreign worker that is not allowed under the program under which the employer or foreign worker recruiter has recruited the foreign worker.

38.91( 4) No employer or foreign worker recruiter shall misrepresent employment opportunities, including misrepresentations with respect to the position to be filled by a foreign worker, the duties of the position, the length of employment, the rate of wages, benefits or other terms and conditions of employment.

(d) by repealing subsection (5) and substituting the following:

38.91( 5) No employer or foreign worker recruiter shall supply or cause to be supplied false or misleading information to a foreign worker about employer and employee rights and responsibilities.

(e) by repealing subsection (6) and substituting the following:

38.91( 6) No employer or foreign worker recruiter shall take possession of or retain property that the foreign worker is entitled to possess, including the foreign worker’s passport or work permit.

(f) by repealing subsection (8) and substituting the following:

38.91( 8) No employer or foreign worker recruiter shall threaten a foreign worker with deportation or another action for which there is no lawful cause.

(g) by adding after subsection (8) the following:

38.91( 9) No employer or foreign worker recruiter shall charge a fee or expense for employment or for foreign worker recruitment services, directly or indirectly, to a foreign worker or any person other than an employer.

4 Section 64.2 of the Act is amended

(a) in subsection (2) by striking out “prescribed by regulation, which amount shall not be less than $150 and shall not exceed $900” and substituting “prescribed by regulation”;

(b) by adding after subsection (5) the following:

64.2( 6) The Director may file a certified copy of an order made under subparagraph 65(1)(c)(iv.1) with a clerk of The Court of King’s Bench of New Brunswick, and, on being filed, that copy has the same force and effect as if it were a judgment of the Court.

64.2( 7) If a certified copy of an order is filed under subsection (6), the administrative penalty required to be paid to the Minister of Finance and Treasury Board under the order may be collected as a judgment of The Court of King’s Bench of New Brunswick for the recovery of a debt.

5 Section 85 of the Act is amended by adding after paragraph (b) the following:

(b.01) respecting foreign worker recruiters, including, but not limited to,

( i) information to be provided to foreign workers by the foreign worker recruiter, and

( ii) foreign worker recruitment contracts;

(b.02) respecting the suspension or revocation of the registration of an employer of foreign workers for the purposes of subsection 38.9(5.1);

(b.03) respecting appeals under subsections 38.9(5.2) and 38.901(7), including

( i) establishing or designating an entity responsible to hear appeals,

( ii) prescribing timelines and establishing the procedures for appealing a decision,

( iii) prescribing fees for appeals,

( iv) establishing procedures for appeals,

( v) respecting the effect of an appeal of a decision of the Director pending the outcome of the appeal, and

( vi) prescribing the duties and powers of the entity responsible to hear appeals;

(b.04) prescribing persons or classes of persons for the purposes of paragraph 38.901(2)(d);

(b.05) respecting the application for and issuance of foreign worker recruiter licences, including

( i) prescribing requirements to be met by applicants for a licence for the purposes of paragraph 38.901(3)(b),

( ii) prescribing information to be provided to the Director for the purposes of subparagraph 38.901(4)(b)(ii),

( iii) prescribing fees, including application fees, for the issuance of a licence for the purposes of subparagraph 38.901(4)(c)(i),

( iv) prescribing terms and conditions to which a licence is subject for the purposes of subsection 38.901(5),

( v) respecting procedures and standards for processing licence applications, and

( vi) respecting the expiry of licences;

(b.06) respecting the suspension or revocation of a foreign worker recruiter licence for the purposes of subsection 38.901(6);

(b.07) respecting financial security, including

( i) prescribing the amount and form of financial security for the purposes of subsection 38.901(11),

( ii) establishing terms and conditions under which financial security is forfeited,

( iii) establishing the persons who are entitled to money recovered from the forfeited financial security, and

( iv) respecting the procedures to be followed for money recovered from forfeited financial security;

(b.08) prescribing information for the purposes of paragraph 38.902(1)(d);

6 Section 90.2 of the Act is repealed and the following is substituted:

90.2 If subsection 38.9(6), (7), (8), 38.902(2), 58(2), (3) or 61(2) is inconsistent with or in conflict with a provision of the Right to Information and Protection of Privacy Act, subsection 38.9(6), (7), (8), 38.902(2), 58(2), (3) or 61(2) prevails.

TRANSITIONAL PROVISION AND COMMENCEMENT

Transitional provision

7 Despite any inconsistency with a provision of the Employment Standards Act, a registration that was in effect immediately before the commencement of this section under section 38.9 of that Act as it read immediately before the commencement of this section is deemed to be a valid registration under section 38.9 of that Act, as enacted by section 1 of this Amending Act, and the registration remains in effect until March 31, 2029, unless suspended or revoked under that Act.

Commencement

8( 1) Sections 2, 5, 6 and 8 of this Act come into force on January 1, 2028.

8( 2) Sections 1 and 7 of this Act come into force on April 1, 2028.