Canadian Payroll Reporter

CPR_JUNE_2013v7.qxp:Canadian Employer.qxd 13-05-27 11:50 AM Page 11 CANADIAN PAYROLL REPORTER Is it possible to waive vacation entitlement? Question: Are employees allowed to waive their vacation entitlement? Answer: The answer depends on the jurisdiction in which the employee works since vacation time and pay are governed by each province and territory's employment/labour standards legislation. Canada Labour Code: Employees may postpone or waive their entitlement to an annual vacation for a specified year of employment if the employee and the employer agree in writing the employee may do so. The employer must still pay the employee the vacation pay for that year within 10 months of the employee becoming entitled to it. Employees who are taking a reservist leave may postpone their vacation until their leave is over. Alberta: The Employment Standards Code does not allow employees to waive vacation time. British Columbia: The Employment Standards Act does not allow the waiving of vacation entitlements. Manitoba: There are no provisions in the Employment Standards Code allowing employees to waive vacation entitlements. Employees taking a leave of absence covered under the code may postpone their vacation. Employers are advised to contact the Employment Standards office for information on specific situations. New Brunswick: This issue is not in the Employment Standards Act. Employers are advised to contact the Employment Standards office for information on specific situations. Newfoundland and Labrador: The Labour Standards Act does not address this issue. Labour Standards does note that an employer may cancel an employee's alreadyapproved vacation, but the employer must compensate the employee for reasonable expenses that he or she cannot recover. Employers are advised to contact the Employment Standards office for information. ANNIE CHONG ■ ASK AN EXPERT Northwest Territories: Under the Employment Standards Act, employees are generally not allowed to waive their vacation entitlement. However, in "exceptional circumstances," the legislation does allow it. There are three ways to obtain permission to waive or postpone vacation entitlement: 1) An employer and an employee may apply to the Employment Standards Officer for permission for the employee to waive the vacation for a specific year. In the application, they must identify the exceptional circumstances that require the employee to forgo the vacation. The application must also include a copy of the employee's proposed waiver. If the waiver is approved, the employer must still pay the employee his or her vacation pay no later than six months after the year of employment to which it applies or the date specified in the application, whichever comes first. 2)An employer and an employee may file a written agreement with the Employment Standards Officer stating that they agree to postpone the employee's vacation (or a part of it) for a specified year. The agreement must include a statement that both the employer and the employee agree to the vacation being postponed. The paid vacation is added to the following year's vacation entitlement. 3)An employee may apply on her own to the Employment Standards Officer for permission to have the vacation (or a part of it) postponed to the following year if the employer will not agree to it. In the application, the employee must explain why this is necessary. The employee must also include a statement that he or she requested the postponement but that the employer rejected it. If the application is approved, the Employment Standards Office can require the employer to postpone the vacation to the following year of employment. Nova Scotia: Under the Labour Standards Code, employees who work fulltime are not allowed to waive their vacation entitlement. Employees who work less than 90 per cent of the regular working hours in any continuous 12-month period may opt not to take a vacation leave. In this case, the employer must pay the employee four per cent or six per cent (as applicable) of vacationable earnings not later than one month after the 12-month period ends. The employee must request this option in writing; the employer cannot require it. Nunavut: Under the Labour Standards Act, employees are generally not allowed to waive their vacation entitlement. However, in "exceptional circumstances", the legislation does allow it. There are three ways to obtain permission to waive or postpone vacation entitlement: 1)An employer and an employee may apply to the Labour Standards Officer for permission for the employee to waive the vacation for a specified year. In the application, they must identify the exceptional circumstances that require the employee to forgo the vacation. The application must also include a copy of the employee's proposed waiver. If the waiver is approved, the employer must still pay the employee the vacation pay to which she is entitled within 10 months after the year of employment to which it applies. 2)An employer and an employee may file a written agreement with the Labour Standards Officer stating that Canadian HR Reporter, a Thomson Reuters business 2013 continued on page 12 11

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