An Update and Overview of the Employment Standards Act, 2000

by Leanne E. Standryk

In this article, Leanne E. Standryk provides an overview of the Employment Standards Act, 2000.

The Employment Standards Act R.S.O. 1990, c.E.14 has been rewritten in its entirety and replaced by the Employment Standards Act, 2000 S.O. 2000, c.41. (ESA, 2000), proclaimed into effect September 4, 2001.1 The ESA, 2000 is designed to provide a simplified language to make the legislation easier to read, understand, and more accessible to the public.

In 2002, the Government of Ontario introduced Bill 179, the Government Efficiency Act, 2002 (Efficiency Act). This piece of legislation introduced amendments to a wide variety of legislation, including the ESA, 2000. The relevant parts of the Efficiency Act came into force November 26, 2002. The Bill introduced changes to vacation time and vacation pay reporting, altered the record keeping provisions and clarified some sections which were previously somewhat ambiguous. New or modified Fact Sheets, Information Bulletins and sections of its Policy and Interpretation Manual were introduced to aid employers and workers in understanding the new legislation.

The purpose of this paper is to provide a general overview of the developments which have occurred since the introduction of the ESA, 2000. We recommend that you obtain advice pertaining to specific issues as they arise in your workplace.

PART XIV – EMERGENCY LEAVE PROVISIONS (s. 50)

The emergency leave provision of the ESA, 2000 provides employees whose employer regularly employs 50 or more employees with a maximum of 10 days of unpaid leave per year. On May 8, 2002, the Ministry of Labour released a revised “Information Bulletin No. 2” related to the Emergency Leave provisions containing a revised discussion of what “regularly employs 50 or more employees” means.

According to Ministry policy, one must look at the circumstances that generally prevail in determining how many employees an employer has. Where the employer has maintained a staff of 50 or more employees for 7 of the previous 12 months, the section will likely apply. The Ministry bulletin also deals with those situations where the number of employees in the previous year is not representative of the number that the employer “regularly employs” (the “Quirk Principle”: what happened last year was not representative of the employer’s usual or regular situation)2, or where there has recently been a radical change (the “Sea Change Principle”: a significant increase or decrease in employee complement of some permanence making it highly unlikely that the employer will be able to employ 50 or more employees for some time to come) in the number of employees which appear to be permanent.3 Accordingly, an employer may no longer be considered to regularly employ 50 or more employees where it makes a change of some permanence during the year.

The Bulletin clarifies that entitlements under a contract of employment or collective agreement may prevail over the emergency leave provisions of the ESA, 2000 where an employee actually received a greater benefit under contract. Thus, the paid sick days or compassionate leave days may be used in comparing the two entitlements and an employer need not provide additional ESA emergency leave days where the contract already provides a greater benefit. Where an employee takes a leave day for an event that qualifies under both the contract and the Act, the absence is counted against the employee’s entitlement under both. If the leave only meets the requirements of the statutory Emergency Leave or only meets the requirements of the employer policy, it will only count against that entitlement. This interpretation should alleviate some of the problems of employees “double dipping” under both the contract and the legislation.

In assessing whether an existing employer policy provides a greater right or benefit than the ESA, 2000, the Ministry will look at whether the employee actually gets a greater right or benefit as opposed to whether the policy on its face provides a greater right or benefit. Thus, the interplay between the new statutory provisions and existing policies will largely be determined on a case by case basis.

The revised portion of the Bulletin dealing with the meaning of “relative of the employee who is dependent on the employee for care and assistance” states that,

… Ministry policy is that this provision applies to any “relative” who relies on the employee to some degree for care or assistance in meeting their basic living needs. The relative does not have to be entirely reliant on the employee for all of their needs, nor does he or she have to live with the employee. Moreover, the event for which an employee requests emergency leave does not have to relate to the particular type of dependence the relative has on the employee.

This portion of the Bulletin continues to note that an emergency day for part of a day can be counted as a full day of leave. Employee’s are obligated to provide notice of their intention to take an emergency leave of absence and should inform the employer as soon as possible that they are on emergency leave if unable to provide advance notice. Ministry policy permits an Employer to require evidence that is “reasonable in the circumstances” that verifies the legitimacy of the leave. This does not allow the employer to request detailed medical information, however, a medical certificate may be required if the leave was taken due to a personal illness of the employee. If a third party was ill, the employer can only request the name of and relationship to that person and a statement that the absence was required because of that person’s illness, injury or medical emergency.

EMPLOYEE/EMPLOYER AGREEMENTS

To provide flexibility many sections of the ESA, 2000 permit employers and employees to by-pass or alter its provisions by agreement. Section 1(3) of the ESA, 2000 requires that unless otherwise stated, the agreements between the parties must be in writing. Employers and employees may enter agreements related to the following:

1. Excess hours agreements: to establish a work day greater than 8 hours and weekly hours of work limits, up to a maximum of 60 hours per week;
2. Averaging agreements: average hours of work over a period of up to 4 weeks for the purpose of determining overtime entitlements;
3. Overtime agreements: to provide paid time off in lieu of overtime pay; and
4. Vacation time: to take vacation in increments of less than 1 week.

Enforceability of Agreements

The employment standards officer will look to an number of factors to determine the enforceability of the agreement, namely:

1. does the agreement cover future events;
2. the agreement is signed or in the case of an electronic document whether the employee did something to demonstrate confirmation of the agreement;
3. are the terms clear and specific;
4. are the consequences of making the agreement understood;
5. was the employee coerced into making the agreement or was there any threat of reprisal for failure to enter into the agreement.

The Agreement should be drafted with particular attention to the proper names of the parties, the date the agreement was entered into, the date the agreement becomes effective, the date the agreement will expire, the employment standard that the parties intend to vary and what arrangement specific to the parties is replacing that standard.

Different types of agreements contemplated by the ESA, 2000 may have very specific requirements. Accordingly, employers should have reference to the provisions of the ESA, 2000 and/or legal counsel to ensure that the proposed agreement meets the requirements of a “valid agreement” pursuant to the ESA, 2000.

Excess Hour Agreements

Excess hour agreements must be in writing as required by s. 1(3) of the ESA. The Ministry in its Policy and Interpretation Manual states:

Agreements to work excess hours can specify the exact number of hours that the employee is agreeing to work, or they can specify an upper limit (e.g. up to 10 hours a day).

… Section 17(2) contemplates both “one off” agreements, where the employee agrees in writing to work excess hours on a single occasion and more open-ended “as required” agreements, where the employee agrees in writing to work a specified number of excess hours whenever required by the employer within a future time frame set out in the agreement. For example, a retail employer preparing for a busy Christmas season may ask an employee to agree to “with 2 days’ notice, work up to 12 hours per day and 60 hours a week when required during the months of November and December, 2002”.

The Ministry has indicated that agreements to work excess daily hours and excess weekly hours are two separate agreements, however, they can be embodied in the same or separate documents. The agreement need not specify that both standards are being varied where the variation of one necessitates a variation of the other by implication.

Hours in excess of 60 each week require approval of the Director. Approval is discretionary and Ministry policy sets out those factors that the Director may consider in exercising this discretion. An agreement submitted to the Director for approval must specify the exact number of hours that the employee is agreeing to work or an upper limit (i.e. 65 hours/week).

Agreements may be revoked by an employee by providing an employer with at least 2 weeks’ written notice. The notice must be in writing. Verbal notice will not meet the requirement of the statutory provision. The employer may revoke an agreement after giving the employee reasonable notice. Notice by the employer is not required to be in writing. What is “reasonable” depends upon the circumstances of each case, however, the Ministry has indicated that it does not view “reasonable notice” in the context of revoking an excess hours agreement under the ESA, 2000 to be the same as “reasonable notice” as that term is used in the context of a notice of termination under the common law.

There is one exception to the ability to revoke an agreement with notice. The new Regulations provide that where an agreement to work more than 8 hours in a day was made at the time of the employee’s hiring and the agreement has been approved by the Director, such an agreement is irrevocable unless both the employer and the employee agree to the revocation.

The ESA, 2000 provides employers and employees with the opportunity to enter into overtime averaging agreements. These agreements and the effect of the Government Efficiency Act are discussed later in this paper.

OVERTIME: BANKING OF HOURS

The overtime provisions of the ESA, 2000 require employers to pay employees not less than one and one-half times their regular rate for each hour worked in excess of 44 hours in any week (s. 22(1)). The Government Efficiency Act makes 2 amendments which impact on the overtime provisions of the ESA, 2000. The first amendment deals with the definition of “regular rate”.

The definition of “regular rate” in s. 1 of the Act now provides:

“regular rate” means, subject to any regulation made under paragraph 10 of subsection 141(1), for any employee who is paid by the hour, the amount earned for an hour of work in the employee’s usual work week, not counting overtime hours, otherwise, the amount earned in a given work week divided by the number of non-overtime hours actually worked in that week.

By changing the wording from amount paid to amount earned, the amendment seeks to avoid the anomalous outcome obtained where an employee worked overtime in a work week during which he or she was not “paid” any amount of money. In effect, 1.5 times the regular rate in these circumstances would amount to $0.

The section change produced by the Government Efficiency Act relates to averaging agreements.

The Government Efficiency Act amended section 22(2) of the ESA, 2000 governing averaging agreements. The provision was changed to clarify the Government’s policy intent respecting the period over which such agreements may calculate an average. The amended section reads as follows:

22.(2) Subject to the regulations, if the employee and employer agree to do so, the employee’s hours of work may be averaged over separate, non-overlapping, contiguous periods of not more than 4 consecutive weeks each, for the purpose of determining the employee’s entitlement, if any, to overtime pay.

The ESA, 2000 has codified what was previously Ministry policy allowing an employee to take paid time off in lieu of overtime pay under certain conditions:

1) the employee and employer agree to the arrangement; 2) the time in lieu of overtime pay must be taken within 3 months of the overtime worked, or within 12 months if the employee agrees.

The time off is taken at a rate of one and one half hours per hour of overtime worked. Where an employee’s employment comes to an end prior to the time being taken off, the employer must pay the employee overtime pay at time and a half.

VACATION TIME AND VACATION PAY PROVISIONS Alternative Vacation Year

The most significant alterations effected by the Government Efficiency Act impact the vacation entitlements in the ESA, 2000. The Government Efficiency Act repealed and replaced sections 33 to 35 of the ESA, 2000 and established some new concepts. The biggest change is the introduction of the “alternative vacation entitlement year.” “Alternative vacation year” means with respect to an employee, a recurring 12 month period that begins on a date chosen by the employer other than the first day of the employee’s employment.

The new provisions contained in section 16 of the ESA, 2000 allows the employer to choose to establish an alternative vacation year.

Where this occurs, the employee will accumulate vacation entitlements during the “stub period” which is the period between the employee’s start date and the beginning of the alternative vacation year. During this stub period, the employee will be entitled to receive a pro-rated share of his or her annual vacation entitlement. Employers are required to keep a record of the vacation earned during this period and must allow the employees to take vacation for the stub period within 10 months of the start of the alternative vacation year.

Vacation weeks v. Vacation days

As was the case under the ESA, 2000 prior to November 26, 2002, the new section 33 permits the scheduling of vacation in blocks of less than 1 week. Like the former section 34 of the ESA, 2000, section 35 makes it clear that such a variation from the normal course requires that the employee request a shorter period of vacation in writing. If the employer agrees to the request, in writing, the employee may take vacation time in shorter periods.

Subsections 33(3) and (4) deal with the method for calculating vacation entitlement where an employee does not take vacation in complete weeks. Where an employee works a regular work week, the number of single vacation days is based on the number of days in the employee’s regular work week. In the case of an employee who does not have a regular work week (i.e. an employee who does not work the same number of hours each week), the entitlement to single vacation days is calculated as the average number of days worked per week during the most recently completed vacation entitlement year. Therefore, the employer is now allowed to pro-rate vacation entitlement on the basis of the vacation entitlement year rather than the preceding four month period (s. 33(3)(b). The Ministry sets forth the following example:

1. Count the total number of days the employee worked in the 12 month vacation entitlement year.
2. Divide this number by the number of weeks in a year (365.5 days per year divided by 7 days per weeks) = 51.18 weeks per year.

If the employee had worked 160 days in the 12 month period, the number of single vacation days would be calculated as 160 days divided by 52.18 = 3.07 days per week or 6.14 vacation days total.

Note that the number of single vacation days/hours to which an employee is entitled to may not correspond to their vacation pay entitlement under the ESA, 2000. The employee remains entitled to four percent of his/her total wages earned in each vacation year as vacation pay or the amount to which s/he is entitled as to a greater right or benefit under an employment contract/agreement.

The introduction of the alternative vacation entitlement year required consequential changes to the manner of calculating vacation entitlement. The new section 34 of the Act sets out the method for determining the amount of vacation earned during a “stub period” which is based on the ratio between the length of the “stub period” and a period of 12 months.

Vacation Reporting Provisions

While employers remain obligated to record vacation entitlements (time taken and vacation pay awarded), they are no longer required to provide this information to employees each time vacation is taken. Rather, these records must be produced at the request of the employee after the end of the vacation entitlement year or the end of the stub period. The employer would not be required to provide more than one statement for any vacation entitlement year or stub period. Employers who pay vacation pay that accrues during a pay period on the pay day for that period and who provide a statement setting out the amount of vacation pay being paid separately do not have to provide the annual statement or stub period statement.

The employer is obliged to keep a record of the following information with respect to vacation entitlement:

1. vacation time carried over from previous years;
2. vacation time earned and taken in the vacation year;
3. vacation time remaining available to the employee at the end of the vacation year; and
4. vacation pay paid in the vacation year, the amount of wages on which the vacation pay was calculated and the period of time to which the wages related.

With respect to any stub period, the employer must record:

1. vacation time earned and taken in the stub period;
2. vacation time remaining available to the employee at the end of the stub period; and
3. vacation pay paid in the stub period, the amount of wages on which the vacation pay was calculated and the period of time to which the wages relate.

On a final note, the Government Efficiency Act also increases the limitation period for the recovery of vacation pay owing to an employee from 6 to 12 months.

TERMINATION AND SEVERANCE

The ESA, 2000 retained most provisions contained in the predecessor legislation. Several changes, however, bear noting.

Entitlement to Termination Pay

The ESA, 2000 refers to entitlement to termination pay after an employee has been “continuously” employed for at least 3 months. The predecessor legislation did not contain the word continuously. Under the old Act, the Employment Standards Branch considered whether there was an ongoing employment relationship through an inactive period to determine whether the 3 month requirement was met. According to Ministry policy, continuation of the employment relationship did not require active employment. It is unlikely that the addition of the word continuously will change the Ministry’s interpretation of the 3 month threshold.

Indefinite Layoff and Deemed Terminations

Another noteworthy change came about in response to the provisions in the old Regulation 327 and the recent Ontario Court of Appeal decision dealing with indefinite layoff. Under the old provisions, an employee were laid off without a recall date, employment was deemed to have been terminated the employment of that employee as of the first effective date of the layoff even if the employer, in good faith, expected to recall that employee. Now, the temporary layoff provisions (which are contained in the Act rather than the Regulations) expressly state that the failure to provide a date of recall does not result in the automatic deemed termination of employment. This type of “indefinite” layoff will not result in the deemed termination of employment, unless and until the layoff exceeds the maximum number of weeks provided for in the provisions of the ESA, 2000. Therefore, employees given notice of lay off, unless it is specifically noted as a permanent layoff, may have to wait a substantial period of time to see if they are entitled to termination and/or severance pay.

Constructive Dismissal

The ESA, 2000 now expressly provides that constructive dismissal leads to an entitlement to termination pay. The predecessor legislation only referred to constructive dismissal for severance pay, although the Ministry policy applied it to both.

Exemption from Termination provisions

There are no significant changes in substance to the list of employees who are not entitled to notice of termination under the legislative provisions. However, all exemptions have now been consolidated into section 2 of Regulation 288/01. There are no longer any exempting provisions in the body of the ESA, 2000. Note however that formerly, only Ministry policy dictated that an employee hired for a defined term or task would be entitled to notice of termination if the employee’s employment was terminated before the completion of a term or task. Ministry policy has now been codified in the new Regulations (Reg. 288/01 section 2(1)1, 2(2)).

Temporary Layoff

The definition of temporary layoff has been changed (s.56(2)). A temporary layoff is now defined as one of the following:

1. a layoff of not more than 13 weeks in any period of 20 consecutive weeks; OR
2. a layoff of more than 13 weeks in any period of 20 consecutive weeks if the layoff is less than 35 weeks in any period of 52 consecutive weeks; AND a) the employee continues to receive “substantial payments” from the employer, b) the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or group or employee insurance plan, c) the employee receives supplementary unemployment benefits (“SUB”) d) the employee works elsewhere during the layoff and consequently cannot receive SUB payments that ordinarily would be receivable, e) the employer recalls the employee within the time approved by the Director, or f) where the employee is not represented by a union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; OR
3. where the employee is represented by a union, a layoff longer than 13 weeks in 20 or 35 weeks in any period of 52 weeks, IF the employer recalls the employee within the time frame set out in an agreement between the employer and the union.

The new provision defines a temporary layoff as being no more than 35 weeks in any period of 52 weeks regardless of any other factor. Of note is the use of the word “substantial” in respect of payments made to an employee during a lay off. This word is not defined in the ESA, 2000 or Regulations and, therefore, it remains to be seen what type of payment would meet this test.

The Government Efficiency Act has added rules regarding what constitutes a week of lay-off for employees who do not have a regular work week. The new rules require a comparison of earnings in the week of lay-off to the average amount earned in the prior 12 weeks. Where earnings in the lay-off weeks amount to less than one quarter of the average earnings of the previous 12 consecutive weeks, the week of layoff may be counted toward the 35 weeks (in a period of 52 weeks) which would constitute severance of employment.

The Government Efficiency Act also introduced the notion of an “excluded week” which is not to be counted in the calculation of weeks of layoff for the purpose of the termination and severance provisions. The definition, found in section 56(3) states:

56(3) – In subsection (3.1) to (3.6),

“excluded week” means a week during which, for one or more days, the employee is not able to work, is not available for work, is subject to a disciplinary suspension or is not provided with work because of a strike or lock-out occurring at his or her place of employment or elsewhere.

This subsection requires consideration of the reasons for an employee’s inability to work in determining whether or not a layoff has taken place. Those circumstances beyond the employer’s control or attributable to the employees misconduct are not to be used in making the calculation.

Severance Provisions

The amendments also altered clause 63(1)(a) of the ESA, 2000. That clause sets out those circumstances which constitute severance of the employment relationship for the purpose of determining whether the employer is obligated to make severance payments. The amendment adds that an employer severs the employment if he or she is “unable to continue employing the employee”. This change makes the wording of the section consistent with the definition used in the notice of termination provisions.

The Government Efficiency Act also changed the reporting obligations to the ESA, 2000, which were supplemented by the addition of a new section 12.1, establishing the content of statements to be provided to employees upon termination. The statement must set out,

(a) the gross amount of any termination or severance pay being paid, (b) the gross amount of any vacation pay being paid, (c) the basis for calculating termination/severance pay and vacation pay, (d) the pay period for any wages which are being paid (other than termination, severance and vacation pay), the gross amount of such wages and how those wages were calculated, (e) the wage rate, (f) any deemed amount of wages paid under subsection 23(2) (i.e. amounts with respect to room or board), and (g) the net amount of wages being paid.

ANTI-REPRISAL PROVISIONS

The intention of the anti-reprisal provisions contained in Part XVII of the ESA, 2000 is to ensure that employees can pursue their rights and participate in proceedings under the legislation without fear of employer reprisals.

In section 74 of the ESA, 2000, the reprisal measures of the old Act are maintained. Specifically, employers or persons acting on their behalf are prohibited from intimidating, dismissing and taking reprisals against an employee, or threatening to do so, where the employee’s attempt to enforce their rights or an employer’s obligations. This includes circumstances where an employee:

(a) requests that their employer comply with the legislation, (b) inquire about their rights under the legislation, (c) file a complaint, (d) exercise or attempt to exercise any rights under the legislation, (e) provide information to an Employment Standards Officer, (f) testify, appear at or participate in any proceeding under the legislation, (g) is eligible, will be eligible, intends to or takes a leave under Part XIV, Leaves of Absence, (h) participates in proceedings relating to the Retail Business Holidays Act, and (i) wage garnishment.

Given that several of the provisions of the new legislation require employee consent (i.e. excess hours of work, overtime averaging, public holidays, etc.), penalty provisions are appropriate to deal with employer reprisals where an employee chooses not to agree with a term that an employer may otherwise wish to impose.

The ESA, 2000 puts the onus of proof on an employer to demonstrate that no contravention of the Reprisals section took place where the employee makes an allegation of reprisal.

Where there is an alleged breach of the anti-reprisal provision (s.74), enforcement mechanisms might include an order for compensation and/or reinstatement and/or hire and the issuing of a compliance order. The ESA, 2000 provides that an employer who is in contravention of the legislation or its regulations or one who fails to comply with an order, direction or other requirement under the legislation or its regulations is guilty of an offence. On conviction an individual may be found liable to a fine of not more than $50,000.00 or to imprisonment for a term of not more than 12 months or both. A corporation that is found guilty of an offence is liable to a fine of not more than $100,000.00 for a first conviction, $250,000.00 for a second conviction and to a fine of not more than $500,000.00 for a third and each subsequent conviction. These escalating monetary penalties are new to the provisions of the ESA, 2000 and are intended to deter repeat offences.

Various enforcement provisions of the ESA, 2000 grant employment standards officers wide discretion to investigate, inspect and audit business establishments both to ensure compliance with the Act and respond to complaints. Discretionary enforcement powers include the right to:

(a) enter into premises, except for premises ordinarily used as a residential dwelling without a warrant, to examine relevant records or things; (b) require production of records or things thought to be relevant; (c) remove for review or copying records or things thought to be relevant; (d) use any process ordinarily used to produce a record in readable form (electronically stored); and (e) question any person on matters thought to be relevant.

Generally, any demand for production must be made in writing. In the event that materials are removed for inspection and/or copying, a receipt is to be issued and the materials returned within a reasonable time. Persons having custody of records or things must offer reasonable assistance to provide access to and interpretation of such records or things and readable copies. No person is allowed to hinder or obstruct the officers, exercising their investigative discretion.

The main amendment to the enforcement provisions relates to the expanded powers of the officer to compel attendance at a meeting or issue a wide range of orders without the need to hold a hearing or meeting. For example, section 89(3) of the legislation provides that an officer “is not required to hold a hearing in exercising any power or making any decision under this Act”.

Although officers have the discretion to initiate an investigation, enforcement is largely complaint driven. A complaint filed more than 2 years after the alleged contravention occurred is deemed not to have been filed and cannot therefore be investigated. Under the predecessor legislation, a complaint could proceed so long as the facts upon which it was based first came to the knowledge of the Director not more than 2 years after the alleged contravention. Thus, under the provisions of the ESA, 2000, an actual complaint must be filed within the 2 year period.

MISCELLANEOUS

Posting Requirements

The ESA, 2000 requires employers display a poster entitled “What you should know about the Ontario Employment Standards Act” in a conspicuous place in the workplace. The poster summarizes rights and responsibilities of an employer and employees and was made available by the Ministry in early 2002.

The new Policy and Interpretation Manual, states the Ministry’s position that the poster must be “clearly visible” or “easily seen” and that the legislation may obligate the employer to post more than one poster to ensure that the information is “likely to come to the attention of employees” in the workplaces where not all employees routinely travel past one location. The employer must ensure that the poster is up in its unmodified/unaltered form, as a “replica” will not be considered to be “material….prepared by the Ministry”.

Record Keeping

When enacted, the ESA, 2000 introduced similar record keeping requirements as contained in the old legislation. Section 15 of the ESA, 2000 did modify the length of time over which some records must be retained. Generally, records required by that section must be retained for a period of 3 years after a specified date.

The Government Efficiency Act added section 15.1 to the ESA, 2000, requiring employers to maintain records regarding employee vacation entitlements for a period of 3 years. The content of the records have been discussed under the Vacation portion of this paper.

Hours of Work, Rest Periods and Eating Periods

On July 2, 2002, the Ministry issued Information Bulletin No. 4 dealing with “Hours of Work: Daily Rest Provision for Rest in Between Shifts, Section 18(1) and 18(3)”. In interpreting the 11 hour rest period, the Ministry takes the position that “An employee must have at least 11 consecutive hours free from performing work in each day” unless the employee is on call and is called in during a period when he or she would not otherwise have been expected to work. The Bulletin explains the meaning of “day” in the provision and states:

The first day for an employee starts at the beginning of his or her first shift in the work cycle and ends 24 hours later. Each successive “day” then commences with the first moment of work immediately after the conclusion of the previous day. A work cycle begins after every rest period of 24 hours or longer and it is not necessarily the same period as the “work week” referred to in the Act.

The Government Efficiency Act confirms the Ministry interpretation. Subsection 3(10) of that Act replaces the phrase 11 hours in s. 18(1) of the ESA, 2000 with the phrase “11 consecutive hours” thereby making it clear that the required rest period must be one solid block of time free from work; this change also makes the provision consistent with the terminology used in the section regarding weekly rest periods.

The Bulletin attempts to clarify “Rest in Between Shifts” contained in section 18(3). The provision establishes an 8 hour period of rest between successive shifts, unless the total number of hours in the successive shift does not exceed 13 hours. This requirement can be waived by agreement in writing between the employer and employee. The Bulletin states that even if the employee agrees to less than 8 hours of rest between the successive shifts totaling more than 13 hours, this does not excuse the employer from providing the 11 hour rest period set out in subsection 18(1). This requirement therefore eliminates the possibility of an employee working more than 13 consecutive hours in any 24 hour period (i.e. back to back 8 hour shifts), even if the employee agrees to forego the 8 hours of rest between shifts.

Conclusion

While the ESA, 2000 was intended to and has infused greater flexibility into the employment relationship, its effect has in fact created some confusion and ambiguity. In order to clarify sections which were previously ambiguous and alleviate confusion, the Legislature passed the Government Efficiency Act, 2002. Further, the Ministry has introduced new or modified Fact Sheets, Information Bulletins and sections of its Policy and Interpretation Manual to aid employers and workers in understanding the new legislation. The overall resounding message given by the Government Efficiency Act and Ministry releases is that parties must remember the purpose of the statute: to ensure employees are provided with minimum standards in their terms and conditions of employment.

 

 

[1] Pregnancy and parental leave provisions were proclaimed December 30, 2000 and have been in effect since December 31, 2000.

[2] For example, an employer employed 60 employees for more than half of the immediately preceding calendar year. However, in the 2 or 3 calendar years before the last calendar year, the employer employed only 35 employees. It appears that the employer will not employ 50 or more employees for more than 6 months of the current calendar year. The officer would be justified in concluding that the employer does not meet the 50 employee threshold. The Quirk Principle may work in reverse, i.e. where an employer employed 60 employees in the years before the last calendar year and also thus far in the current year, but happened to employ only 35 employees for more than half of the last calendar, the last calendar year can be seen as an aberration and not representative of the employer’s usual or regular situation. In that case, the ESB officer may conclude that the employer did meet the 50 employee threshold (Employment Standards Act, 2000: Policy & Interpretation Manual, Vol. 1 Carswell).

[3] For example, the employer employed 60 employees for several calendar years in a row and continued to do so for the first 9 months of the immediately preceding calendar year. Last October, however, the employer lost a customer who typically accounted for 40% of the employer’s annual sales and who has not returned, with the result that from October to December of the previous calendar year and so far this year, the employer was employing only 35 employees. In this situation, the officer could conclude that the employer does not meet the 50 employee threshold, despite the fact that the employer employed at least 50 employees for more than half of the immediately preceding calendar year. This principle also works in the reverse. (Employment Standards Act 2000 Policy & Interpretation Manual, ibid).