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

Effective date: July, 2019

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”?
   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 break granted by the employer but is required to remain at the employer’s disposal (for example, respond to clients or answer the telephone)
     
2. Is time-off in lieu of overtime allowed?
   
   Section 174 of the Code stipulates that overtime must be paid and that time off in lieu as compensation for overtime is allowed, provided that the leave accumulated is calculated at a rate of 1.5 hours of leave 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 IPG 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 parties must enter into a written agreement that overtime shall be compensated as time off in lieu at a rate of not less than one and a half times the regular rate for each overtime hour worked and that the employee shall take the paid leave on an agreed date
     
   • time off in lieu must be taken within 3 months or within 12 months when the parties agree on a date in writing
     
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 (for example, hazardous products training) constitutes hours of work
        
      • training required by the employer (for example, additional instruction for a new aspect of the employee's job) constitutes hours of work
        
      • training initiated by preference 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.
      
      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
        
      • if the employee is required to travel to different sites to carry out his functions, notwithstanding the fact that he does not drive the employer’s vehicle during such travel
        
      See: Déménagements Tremblay Express Ltée v. Gauthier, 2018 FC 584
      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.
   3. Stand-by or on-call time
      
      Please refer to the definition in the IPG 110 - Elect-to-work and On-Call or Standby employees. While “stand-by” or “on-call” employees are common to many industries, the time spent waiting for a call is not considered work.
      
      While “stand-by” or “on-call” employees are common to many industries, the time spent waiting for a call is not considered 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 2 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.
        
      Generally, “waiting time” is not considered to be “hours of work” to be paid.
      
   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.