Legislative Assembly of New Brunswick
Status of Legislation - First Reading Bill
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+++ Construction Labour Mobility Act +

Legislature :
55
Session :
1
Bill No. :
3
Member :
Mr. Shawn Graham
First Reading :
2003-8-1
Second Reading :
Committee of the Whole :
Amended :
Third Reading :
Royal Assent :
Download PDF :
Bill 3

Text of Bill :
Chapter Outline

Preamble

Definitions......................................................................................................................................... 1

PART I CONSTRUCTION CONTRACTORS

Register with office........................................................................................................................... 2

Partnerships and Business Names Registration Act registration............................................... 3

Further registration requirements.................................................................................................... 4

Requirements for placing bids.......................................................................................................... 5

Restriction on awarding construction contracts............................................................................. 6

Limitation on subcontracting............................................................................................................ 7

Requirements re apprentices............................................................................................................ 8

PART II CONSTRUCTION WORKERS

Register with Office.......................................................................................................................... 9

PART III TRANSPORTATION OF AGGREGATES

Licence requirement under the Motor Vehicle Act...................................................................... 10

PART IV GENERAL

Office established........................................................................................................................... 11

Inspectors......................................................................................................................................... 12

Obstruction of inspector................................................................................................................. 13

Collection of information.............................................................................................................. 14

Immunity.......................................................................................................................................... 15

Where this Act prevails................................................................................................................... 16

Non-application of Act................................................................................................................... 17

Offence, subsection 2(1)................................................................................................................ 18

Regulations...................................................................................................................................... 19

Regulations by Minister.................................................................................................................. 20





Preamble

WHEREAS New Brunswick contractors, workers in the construction industry and aggregate haulers experience barriers to working and doing business in other jurisdictions because of unfair, discriminatory or restrictive practices in those other jurisdictions while contractors, workers in the construction industry and aggregate haulers from those other jurisdictions are able to work in New Brunswick without similar barriers.



AND WHEREAS it is recognized that employment opportunities in those areas for New Brunswick residents would be enhanced and more equal access to business and job opportunities would be created by introducing measures aimed at restricting access to those taking advantage of New Brunswick's policy of free mobility.



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



Definitions

1(1)                   In this Act



"accountant" means a chartered accountant, a certified general accountant or a registered industrial accountant;



"bid" means documentation submitted by a contractor in response to a tender for a construction contract;



"construction" includes all work in or about



(a)               constructing, altering, decorating, repairing, demolishing, erecting or remodelling the whole or any part of a building or structure,



(b)               laying pipe and conduit above or below ground level,



(c)                excavating, tunnelling, fencing, grading, paving, land clearing and bridging,



(d)               building a highway, as defined in section 1 of the Highway Act,



(e)                carrying out the prescribed activities, and



(f)                providing consulting services, including architectural or engineering services, with respect to the matters set out in paragraphs (a) to (e);



"contractor" means a person who enters into a contract and includes a subcontractor;



"designated area" means an area in New Brunswick that is prescribed as a designated area under section 19 or, if no area is prescribed, all of New Brunswick;



"designated jurisdiction" means the Province of Quebec as well as any other province or territory that is prescribed as a designated jurisdiction under section 19;



"Director" means the Director of the Office;



"Minister" means the Minister of Training and Employment Development;



"Office" means the Jobs Protection Office established under section 11;



"person resident in a designated jurisdiction" means,



(a)               in the case of an individual or a sole proprietor, a person who is ordinarily resident in that jurisdiction,



(b)               in the case of a corporation,



(i)         a person whose head office or registered office is located in that jurisdiction, or



(ii)       a person controlled directly or indirectly by a person described in subparagraph (i),



(c)                in the case of a partnership, a partnership that includes at least one partner who is resident in that jurisdiction under paragraph (a) or (b);



"prescribed" means prescribed by the regulations made under this Act.



1(2)                   For the purposes of subparagraph (b)(ii) of the definition "person resident in a designated jurisdiction" in subsection (1), "controlled" has the same meaning as in subsection 1(5) of the Business Corporations Act.



PART I

CONSTRUCTION CONTRACTORS

Register with Office

2(1)                   No person resident in a designated jurisdiction shall enter into or submit a bid for a construction contract for work in a designated area without first registering with the Office.



2(2)                   The Director shall register a contractor that is a corporation if the contractor



(a)               provides proof of its corporate status and a detailed auditor's statement from an accountant certifying that its working capital ratio is at least 1.1 to 1 for the current fiscal year;



(b)               posts security as prescribed in the amount of $10,000;



(c)                pays the fee set by the Director; and



(d)               satisfies any other prescribed requirements.



2(3)                   The Director shall register a contractor that is not a corporation if the contractor,



(a)               provides proof of its business status and detailed financial statements in a form approved by the Director;



(b)               posts security as prescribed in the amount of $10,000;



(c)                pays the fee set by the Director; and



(d)               satisfies any other prescribed requirements.



Annual registration

2(4)                   A registration under this section is effective for one year.



Partnerships and Business Names Registration Act registration

3(1)                   A person who is required to be registered under section 2 shall not be registered under section 3 of the Partnerships and Business Names Registration Act unless the person provides proof of registration under section 2.



Limited Partnership Act

3(2)                   A declaration under the Limited Partnership Act with respect to a limited partnership that is or will be contracting for construction work shall not be accepted for filing if any of the general partners are persons required to be registered under section 2 unless all of those persons provide proof of registration under section 2.



Where void

3(3)                   A registration or filing made in contravention of this section is void.



Immunity

3(4)                   No proceeding shall be commenced against a person with respect to a decision concerning a registration or a filing that contravenes this section.



Further registration requirements

4(1)                   No contractor who is required to be registered under section 2 shall be certified, registered, licensed or issued a permit or authorization under the prescribed legislation or the by-laws of the prescribed municipalities authorized under prescribed legislation unless the contractor provides proof of registration under section 2 and of compliance with sections 3 and 4, if they apply with respect to the contractor.



Where void

4(2)                   A certification, registration, licensing or issuance of a permit or authorization made in contravention of this section is void.



Immunity

4(3)                   No proceeding shall be commenced against a person with respect to a decision concerning the issuance of a certificate, registration, license, permit or authorization that contravenes this section.



Requirements for placing bids

5(1)                   No contractor who is required to be registered under section 2 shall present a bid with respect to a construction contract for work in a designated area unless the contractor provides proof of registration under section 2 and fulfill all of the following requirements:



(a)               proof of having registered under the Partnerships and Business Names Registration Act in accordance with subsection 3(1);



(b)               proof of having filed a declaration under the Limited Partnership Act in accordance with subsection 3(2);



(c)                proof of having been certified, registered, licensed or issued a permit or authorization to which section 4 applies in accordance with that section;



(d)               proof of having filed a return under the Business Corporations Act.



Contract voidable

5(2)                   If a contract is awarded to a contractor who presented a bid for it in contravention of subsection (1), the contract is voidable by the person who awarded the contract.



Restriction on awarding construction contracts

6(1)                   The Government of New Brunswick shall not award a construction contract to a contractor who is required to be registered under section 2.



Agencies, Boards and Commissions

6(2)                   The prescribed agencies, boards and commissions shall not award a construction contract to a contractor who is required to be registered under section 2.



Municipalities

6(3)                   A municipality as defined in the Municipalities Act shall not award a construction contract for work in a designated area to a contractor who is required to be registered under section 2.



Corporations

6(4)                   The prescribed corporations shall not award a construction contract to a contractor who is required to be registered under section 2.



Immunity

6(5)                   Subject to section 18, no proceeding shall be commenced against a person to whom this section applies with respect to a decision concerning the awarding of a construction contract that contravenes this section.



Contract voidable

6(6)                   A contract awarded to a contractor in contravention of this section is voidable by the person who awarded it.



Limitation on subcontracting

7(1)                   A person who has a construction contract with the Government of New Brunswick or any other body referred to in subsection 6(1), (2) or (4) shall not enter into any contract with respect to that construction contract with a contractor who is required to be registered under section 2.



7(2)                   A person who has a construction contract for construction work in a designated area with a municipality as referred to in subsection 6(3) shall not enter into any contract with respect to that construction contract with a contractor who is required to be registered under section 2.



Requirement re apprentices

8                           The wage rates and ratios of apprentices to journeypersons required under the Apprenticeship and Occupational Certification Act shall be deemed to apply under that Act with respect to all apprentices of a contractor required to be registered under section 2.



PART II

CONSTRUCTION WORKERS

Register with Office

9(1)                   Every individual who is a person resident in a designated jurisdiction and who is or will be doing construction work in a designated area shall register with the Office.



9(2)                   Subject to subsections (3) and (4), the Director shall register an individual referred to in subsection (1) if the individual,



(a)               provides evidence satisfactory to the Director of work experience in a prescribed trade, occupation or construction activity;



(b)               pays the fee set by the Director; and



(c)                satisfies any other prescribed requirements.



If certificate required in designated jurisdiction

9(3)                   If an individual seeking registration under subsection (1) is or will be doing construction work in a prescribed trade, occupation or construction activity for which a certificate, registration, licence, permit or authorization is required in the designated jurisdiction, the individual shall also provide evidence satisfactory to the Director of that certificate, registration, licence, permit or authorization.



If certificate required in New Brunswick

9(4)                   If an individual seeking registration under subsection (1) is or will be doing construction work in a prescribed trade, occupation or construction activity for which a certificate, registration, licence, permit or authorization is required in New Brunswick, the individual shall also provide evidence satisfactory to the Director of that certificate, registration, licence, permit or authorization.



Annual registration

9(5)                   A registration under this section is effective for one year.



Special exemption

9(6)                   On the request of a person resident in New Brunswick, the Director may exempt a specified individual from the requirements of subsections (3) and (4) with respect to a particular project if,



(a)               the specified individual is working for the person resident in New Brunswick;



(b)               in the Director's opinion, the individual's skills are necessary to that project; and



(c)                in the Director's opinion, because of a shortage of those skills, no other individual who is a resident of New Brunswick is available to carry out the work.



PART III

TRANSPORTATION OF AGGREGATES

Licence requirement under the Motor Vehicle Act

10(1)               Every commercial vehicle licence issued under the Motor Vehicle Act to a person resident in a designated jurisdiction shall be deemed to have a condition prohibiting the transportation of aggregates within New Brunswick.



Application of subsection (1)

10(2)               Subsection (1) applies even if the licence was issued before subsection (1) comes into force.



PART IV

GENERAL

Office established

11(1)               An office to be known in English as the Jobs Protection Office and in French as Bureau de protection des emplois is established for the purposes of this Act.



11(2)               The Minister may



(a)               designate offices of the Department of Training and Employment Development or of other departments as branch offices of the Office; and



(b)               make rules for any other matter necessary or advisable for the operation of the Office.



Director

11(3)               The Minister shall designate an official of the Department as Director and the Director shall be responsible for the Office.



Delegation

11(4)               The Minister may delegate to the Director any of the Minister's powers set out in clause (2) (b).



Powers and duties of Director

11(5)               The Director shall be responsible for



(a)               registering construction contractors under section 2 and individuals under section 9;



(b)               coordinating the enforcement of this Act and the prescribed legislation;



(c)                coordinating information sharing among departments and other bodies required to enforce this Act and the prescribed legislation;



(d)               providing information and assistance to New Brunswick construction contractors and construction workers seeking contracts and work in a designated jurisdiction;



(e)                monitoring access by persons from New Brunswick to construction business and job opportunities in a designated jurisdiction and reporting to the Minister concerning that access; and



(f)                carrying out any other matter that the Minister considers necessary or advisable with respect to administering this Act and carrying out its objectives.



Inspectors

12(1)               The Minister may designate as inspectors employees of the Government of New Brunswick, of a municipality or of any other body administering or enforcing legislation or by-laws referred to in this Act or the regulations made under this Act.



Powers of inspectors

12(2)               An inspector may



(a)               enter in or on any workplace without a warrant;



(b)               require the production of any document required under this Act and inspect, examine and copy any such document;



(c)                stop and search a commercial vehicle for the purpose of determining whether there is a contravention of section 10;



(d)               make enquiries of any person who is or was in a workplace to which this Act applies with respect to whether or not any person is a person resident in a designated jurisdiction;



(e)                exercise under this Act any power with respect to an inspection that he or she may exercise under another Act; and



(f)                exercise any other prescribed power.



Dwelling

12(3)               Despite paragraph (2)(a), an inspector shall enter a dwelling or that part of a dwelling being used as a workplace only with the consent of the occupier or under the authority of a search warrant issued under section 139 of the Provincial Offences Procedure Act.



Seizure of documents or things

12(4)               While acting under the authority of this Act, an inspector may, without a warrant or court order, seize any document or thing that is produced to him or her or that is in plain view if the inspector reasonably believes that this Act or a regulation has been contravened and that the document or thing will afford evidence of the contravention.



Possession

12(5)               The inspector may remove the document or thing seized or may detain it in the place in which it is seized.



Notice and receipt

12(6)               The inspector shall inform the person from whom the document or thing is seized as to the reason for the seizure and shall give the person a receipt for it.



Report to justice

12(7)               The inspector shall bring a document or thing seized under the authority of this section before a provincial court judge or, if that is not reasonably possible, shall report the seizure to a provincial court judge.



Procedure

12(8)               Section 143 of the Provincial Offences Procedure Act applies with necessary modifications in respect of a document or thing seized under the authority of this section.



Obstruction of inspector

13                        No person shall hinder or obstruct an inspector in the lawful performance of his or her duties or furnish an inspector with false information or refuse to furnish the inspector with information required for the purposes of this Act.



Collection of information

14(1)               For the purposes of carrying out his or her duties under this Act, the Director may require a person to whom this Act applies to provide the Director with information.



Sharing of information

14(2)               Any person who administers or enforces this Act or legislation or by-laws referred to in this Act may share with one another information in their possession if that information is necessary for the purposes of this Act, that legislation or those by-laws.



Confidentiality

14(3)               Every person who administers or enforces this Act shall preserve secrecy with respect to all matters that come to his or her attention in the course of his or her duties under this Act and shall not disclose information relating to those matters to any person unless,



(a)               the information is required in connection with the administration of this Act or a proceeding under this Act;



(b)               the disclosure is made to his or her counsel;



(c)                the disclosure is made in accordance with subsection (2);



(d)               the information is generally available to the public; or



(e)                in the case of personal information, the disclosure is made with the consent of the person to whom the information relates.



Compellability

14(4)               No person who administers or enforces this Act shall be compelled to give testimony in any proceeding, other than a proceeding under this Act, with regard to information obtained in the course of his or her duties.



Definition

14(5)               In this section,



"information" includes personal information within the meaning of section 1 of the Protection of Personal Information Act.



Immunity

15                        No proceeding shall be commenced against the Crown, a Minister, the Director, an inspector or any other person responsible for administering or enforcing this Act respecting any act done in good faith in the performance or intended performance of any duty or in the exercise or intended exercise of any power under this Act or for any alleged neglect, default or omission in the performance or exercise in good faith of any duty or power under this Act.



Where this Act prevails

16(1)               The right of a person to a licence, certification, registration, permit or authorization under another Act is subject to this Act.



16(2)               If there is a conflict between this Act and any legislation or by-law affected by this Act, this Act prevails.



Non-application of Act

17(1)               No provision of this Act applies with respect to construction work in New Brunswick under a construction contract that was in force before the day this Act is proclaimed in force.



Exception

17(2)               Subsection (1) does not apply with respect to a new contract with respect to a construction contract referred to in that subsection or work arranged with respect to a construction contract referred to in that subsection if the new contract is made or the work arranged on or after the day this section is proclaimed in force.



Offence, subsection 2(1)

18(1)               A person who contravenes subsection 2(1) is guilty of an offence and on conviction is liable,



(a)               in the case of a corporation, to a fine of not more than $25,000 for each day or part of a day that the corporation continues to work in contravention of that subsection; and



(b)               in the case of a person who is not a corporation, to a fine of not more than $2,000 for each day or part of a day that the person continues to work in contravention of that subsection.



Offence, section 5

18(2)               If a person resident in a designated jurisdiction enters into a contract after making a bid that contravenes section 5, the person is guilty of an offence and on conviction is liable,



(a)               in the case of a corporation, to a fine of not more than $25,000; and



(b)               in the case of a person who is not a corporation, to a fine of not more than $2,000.



Offence, sections 6 and 7

18(3)               If a contractor who is required to be registered under section 2 enters into a contract to which section 6 or 7 applies, the contractor is guilty of an offence and on conviction is liable to a fine of 10 per cent of the contract price.



Offence, section 8

18(4)               A contractor who fails to comply with the wage rates and ratios of apprentices to journeyperson required under section 8 is guilty of any offence and on conviction is liable,



(a)               in the case of a corporation, to a fine of not more than $25,000; and



(b)               in the case of a person who is not a corporation, to a fine of not more than $2,000.



Offence, subsection 9(1)

18(5)               An individual who contravenes subsection 9(1) is guilty of an offence and on conviction is liable to a fine of not more than $2,000 for each day or part of a day that the individual continues to do construction work to which that subsection applies while remaining unregistered under section 9.



18(6)               If an individual who contravenes subsection 9(1) is doing work for a contractor who is required to register under section 2, the contractor is guilty of an offence and on conviction is liable,



(a)               in the case of a corporation, to a fine of not more than $25,000; and



(b)               in the case of a person who is not a corporation, to a fine of not more than $2,000.



Offence, section 10

18(7)               A person who transports aggregates in contravention of the deemed condition set out in section 10 is guilty of an offence and on conviction is liable,



(a)               in the case of a corporation, to a fine of not more than $25,000; and



(b)               in the case of a person who is not a corporation, to a fine of not more than $2,000.



Offence, section 13

18(8)               A person who hinders or obstructs an inspector in contravention of section 13 is guilty of an offence and on conviction is liable,



(a)               in the case of a corporation, to a fine of not more than $25,000; and



(b)               in the case of a person who is not a corporation, to a fine of not more than $2,000.



Offence subsection 14(3)

18(9)               A person who contravenes subsection 14(3) is guilty of an offence and on conviction is liable to a fine of not more than $5,000.



Minimum fine

18(10)            The minimum fine for an offence under this section is $500.



Regulations

19(1)               The Lieutenant-Governor in Council may make regulations,



(a)               prescribing a province or territory of Canada as a designated jurisdiction for the purposes of this Act or for the purposes of specified provisions of it;



(b)               prescribing a designated area for the purposes of this Act or for the purposes of specified provisions of it.



19(2)               The Lieutenant-Governor in Council may prescribe a province or territory as a designated jurisdiction under paragraph (1) (a) only if the Lieutenant-Governor in Council is of the opinion that the province or territory has engaged in unfair, discriminatory or restrictive practices with respect to the construction industry.



19(3)               Different designated jurisdictions and different designated areas may be prescribed for the purposes of different provisions of this Act and the regulations and those jurisdictions and areas may be designated for a specified period of time.



Regulations by Minister

20(1)               The Minister may make regulations,



(a)               prescribing additional activities to be included in the definition "construction" in section 1;



(b)               prescribing the nature and purpose of security and prescribing forms and additional requirements for the purposes of subsections 2(2) and (3);



(c)                prescribing legislation and prescribing municipalities and legislation authorizing by-laws for the purposes of section 5;



(d)               prescribing agencies, boards and commissions for the purposes of subsection 6(2);



(e)                exempting specified municipalities from section 6;



(f)                prescribing corporations for the purposes of subsection 6(4);



(g)               prescribing trades, occupations and construction activities and additional requirements for the purposes of section 9;



(h)               defining aggregates for the purpose of section 10;



(i)                authorizing the Director to delegate specified powers and duties set out in subsection 11(5) to specified persons or classes of persons;



(j)                prescribing legislation for the purposes of paragraphs 11(5)(b) and (c);



(k)                prescribing additional powers of inspectors for the purposes of subsection 12(2);



(l)                exempting classes of individuals who are persons resident in a designated jurisdiction from this Act or specified provisions of it;



(m)               exempting specified contractors who are persons resident in a designated jurisdiction from this Act or specified provisions of it;



(n)               respecting any matter necessary or advisable to carry out the intent and purpose of this Act.



Municipalities only in designated areas

20(2)               For the purposes of paragraph (1)(c), the Minister may only prescribe municipalities that are located in a designated area.

 

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