Hours of Work – Canada Labour Code, Part III – Division I - 802-1-IPG-002

Effective date: March, 2017

Note: Pursuant to the Interpretation Act, in the following text, words importing male persons include female persons.

Guidelines

1. Subject

This IPG is intended to clarify the definition of hours of work pursuant to Division I, Part III of the Canada Labour Code (Code).

2. Issue

There is a need to clarify:

  1. what is meant by the term “work”;
  2. whether time-off in lieu of overtime is allowed; and;
  3. whether the following terms fall within the definition of “hours of work”:
    1. Training time
    2. Travel time
    3. Stand-by or on-call time
    4. Waiting time
    5. Lay-over time

3. Questions and answers

  1. What is meant by the term “work”?

    The Labour Program takes the view that work must be given a common sense or practical meaning in the context of certain industries and established practices. Flexibility to define “work” and what is to be paid for should generally be left to the employee and employer to negotiate.

    See: Ian Wilson and Airborne Energy Solutions Ltd. (YM2727-1457)

    In general, an employee is performing “work" when the employee:

    • is on any trial period or training required by the employer;

    • is on travel time required by the employer;

    • is at the employer’s disposal on the worksite and the employee is required to wait for work to be assigned or is assigned work outside their normal responsibilities; and

    • is on a scheduled break granted by the employer.

  2. Is time-off in lieu of overtime allowed?

    While section 174 of the Code states that overtime hours worked are to be paid, time-off in lieu of overtime is allowed provided the time-off accumulated is calculated at a rate of one and one-half hours of time-off for each overtime hour worked.

    The employer must maintain records to show that the practice of providing overtime through time-off in lieu is being followed. Overtime hours worked and time-off at the overtime rate must be clearly recorded.

    Although there are time-off in lieu provisions included in some collective agreements, this directive is intended for arrangements that are not contained in a collective agreement.

    An employer who offers time-off in lieu arrangements, should include the following:

    • The time-off in lieu is provided at the rate of one and one-half hours for each overtime hour worked.

    • Contain a “winding up” provision that allows an employee to “cash out” banked overtime at regular intervals.

    • That time-off in lieu is scheduled at a time mutually agreeable to the employee and employer.

    See: Dara Fresco and Canadian Imperial Bank of Commerce (2009 CanLII 31177 (ON SC))

    See: Alice Chabaylo and Koscis Transport Ltd. (YM2727-1734)

    See: Total Energy Services Ltd. (now doing business as Total OilField Rentals Ltd.) and Wallace Hodder (YM2727-2864)

  3. Do the following terms fall within the definition of “hours of work”?

    1. Training time

      Given the wide interpretations of the meaning of work, the following can be concluded:

      • Training required by law (e.g. hazardous products training) constitutes hours of work.

      • Training required by the employer (e.g. additional instruction for a new aspect of the employee's job) constitutes hours of work.

      • Training initiated on the volition of the employee or developmental voluntary training which prepares the employee for another job does not constitute hours of work.

      The interpretation of training time does not affect the operation of section 11 of the Canada Labour Standards Regulations concerning registered apprenticeship programs.

    2. Travel Time

      In general travel time is not considered to be hours of work for the purposes of the Code. While there may be specific industry regulations or collective agreements that allow travel time as hours of work, these must be considered on a case-by-case basis.

      When considering whether travel time is work, the following principles should be taken into account:

      • Whether travel is an integral part of the job;

      • The degree of direction and control exerted by the employer;

      • Responsibility for the employer’s vehicle and/or equipment during travel.

      See: Canadian National Railway and Canadian Telecommunications Union, 1978 [1978] O.L.A.A. No. 11

      See: Ontario Public Service Employees Union (Daye) v. Ontario (Ministry of Natural Resources) [2008] O.G.S.B.A No. 40(QL)

      Travel time could be considered work in the following cases:

      • if the employee takes a company vehicle home in the evening for the employer’s convenience;

      • if the employee is required to transport other staff or supplies to or from the work place or work site; and

      • if the employee has a usual work place but is required to travel to another location to perform work.

      Travel time is not considered work while commuting to and from the usual work place. It is well accepted that the time required by an employee to get to and from work – commuting time - is generally not considered work time regardless of whether the employee starts and ends his day at his residence or at the employer’s lodging.

      See: Lance Boot and Herzog Railroad Services of Canada Ltd. (YM2727-3387)

      See: Noah Allison v. 3359492 Canada Inc. o/a Meeker’s Aquaculture o/a Blue Goose (2016 CanLII 3622 (ON LRB))

    3. Stand-by or on-call time

      An employee who is on “stand-by” or “on-call” is away from the workplace and accessible to the employer when needed. When an employee is on “stand-by” or “on-call” they often are provided with a pager, cell phone or other form of electronic communication which allows them some range of mobility so they can be away from their residence and continue to be available to the employer.

      While “stand-by” or “on-call” employees are common to many industries, the time spent waiting for a call is not considered work.

      This is borne out by case law:

      Richard Paré vs. S.R.J Expedite Limited (YM2727-2696): “A person who is available to work if needed, but who is not in fact needed, is not working.”

      Bradley H. Bell vs. LTS Solutions (YM2727-3161): “I disagree with Mr. Bell’s position that being on call and having a company cell phone and vehicle at your residence necessarily means that you are at work. ...Carrying a pager may be an inconvenience and remaining within the pagers range is undoubtedly so but this does not turn being on standby into work”.

    4. Waiting time

      “Waiting time” applies mostly in the trucking industry. While “working hours” usually means all hours from the time that a motor vehicle operator begins their work shift until the time they are relieved of their job responsibilities, it does not include certain times:

      • during a work shift when they are relieved of their job responsibilities by the employer for authorized meals, rest and other wait time while en route or at their destination;

      • spent during stops en route due to illness or fatigue;
        resting en route as one of two operators of a motor vehicle that is fitted with a sleeper berth; or
        resting while en route in a motel, hotel or other similar regular place of rest where sleeping accommodation is provided.

      In the absence of any agreement that states otherwise, “waiting time” is not considered to be “hours of work” to be paid.

      See: Mouradian vs. Jasmin Freight Systems Inc., Pickering, Ontario (YM2727-3215)

    5. Lay-over time

      This period is a common occurrence in the road transportation industry.

      A “lay-over” occurs when a driver completes their delivery and is awaiting further instructions regarding other possible pick-ups.

      The period that the driver is out of service is a lay-over and this is not considered to be hours of work.
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