Serious interference with the operation of the establishment - Exceptions - IPG-094

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• Subject
• Issue
• Interpretation
• Examples

Subject

This Interpretation, Policy and Guideline (IPG) intends to define the expression, "serious interference with the operation of the establishment". This expression appears in sections 169.1, 169.2, 173.01, 173.1 and 174.1 under Division I of Part III of the Canada Labour Code (Code).

Note: This IPG does not apply to classes of employees who were granted an exemption and/or modification to specific provisions as per the Exemptions from and Modifications to Hours of Work Provisions Regulations.

Note: “employees” also includes “interns”. Student interns are not subject to the interpretation of this IPG.

The exception to certain labour standards obligations related to the expression "serious interference with the operation of the establishment" only applies if it has previously been established that a "situation that the employer could not have reasonably foreseen", as defined in IPG-091, had occurred. It also only applies if there was evidence of an "imminent or serious threat", as defined in IPG-092.

Text description of Situation that the employer could not have reasonably foreseen

The image is a flowchart that shows the interrelation between the 4 IPGs about "Imminent or serious", "To the life, health or safety of any person", "Of damage to or loss of property" and "Of serious interference with the operation of the establishment" which must be applied in complementarity.

Issue

The following provisions have been added to the Code:

• break - 169.1
• rest period - 169.2
• notice - work schedule - 173.01
• shift change - 173.1 and
• right to refuse - 174.1

The interpretation and application of the expression, "serious interference with the operation of the establishment" must be standardized nationally. This IPG addresses the following:

• the meaning of the expression, "serious interference with the operation of the establishment" in relation to the above-mentioned sections
• criteria used to determine whether the interference is serious enough to jeopardize the operation of an establishment

Interpretation

"Serious interference" in this context means a prejudice serious enough to fully or partially compromise one or more activities at the employer's establishment.

"Operation of an establishment" means all the daily activities of the employer's establishment, consistent with its purpose and basic objectives (mission).

"Industrial establishment" means any federal work, undertaking or business and includes such branch, section or other division of a federal work, undertaking or business as is designated as an industrial establishment by regulations made under paragraph 264(b) of the Code.

The exercise, in order to conclude that there would have been a serious interference with the operation of the establishment, is to assess whether:

• the business would have faced temporary disruptions, or
• its operation would have been seriously affected

In cases where only 1 activity was allegedly affected, it is necessary to first try to determine what percentage of the activity in question was affected. Afterwards, examine the impact of this activity on the establishment's overall operations.

In cases where 2 or more activities were allegedly affected, it is necessary to:

• determine the percentage to which each activity was affected and the impact of each on the establishment's general operation
• determine the impact that one affected activity may have had on another if these activities, though separate, are interdependent with other activities
• pay particular attention to these situations given the strong possibility that a low percentage activity could have a significant effect on another subsequent related activity

In cases where the employer operates a network (for example, train or cell), the partial or total shut down of those activities could create a domino effect, as the continuous activities of that network, by their nature, are not carried out within a physical establishment. This would negatively impact the normal operation of several or all of this employer's establishments.

Finally, it is also necessary to determine whether the employer took steps to cope with such interference before relying on the exception. For example, to minimize its impact on the operation of its establishment. If so, what steps did the employer take? In certain circumstances, depending on the facts, an employer may not be able to take steps to avert an emergency.

Establishments, which are not in continuous operation, should have greater flexibility in handling such situations, as the proposed measures could be taken outside the establishment's operating periods, during non-business hours or days.

On the other hand, this issue is more likely to affect establishments engaged in so-called continuous activities. This is because continuous work can pose an additional constraint and cause contingencies during operations to interfere more significantly with an establishment's operation including:

• outages
• breakages, or
• emergencies

By their nature, such activity considerably limits an employer's flexibility since the employer must take measures during the establishment's hours of operation (often 24/7).

The following criteria may also be considered:

• level of compromise inherent in the situation
• health and safety risks to employees and/or the public
• number of employees affected
• number of services, divisions and business lines affected
• percentage of operations affected in relation to the company's total operations
• financial consequences for the employer
• number of operations disrupted
• need and urgency of resuming activities
• legal obligations specific to the employer that it will not be able to fulfil

Examples