Serious interference with the operation of the establishment - Exceptions - Canada Labour Code, Part III - Division I - 802-1-IPG-094
Coming into force: September 1, 2019
Note: In accordance with the Interpretation Act, words in the following text importing male persons include female persons.
The purpose of this IPG is to clarify the definition of "serious interference with the operation of the establishment" as it appears in sections 169.1, 169.2, 173.01, 173.1 and 174.1 under Division I, Part III of the Canada Labour Code (Code).
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 been reasonably foreseen", as defined in IPG802-1-IPG-091, had occurred and there was evidence of an "imminent or serious threat", as defined in IPG802-1-IPG-092.
- break - 169.1
- rest period between work periods or shifts - 169.2
- notice - work schedule - 173.01
- notice - change to a work shift or period - 173.1
- limited right to refuse overtime to meet family obligations - 174.1
These amendments come into force on September 1, 2019.
The interpretation and application of the expression, "serious interference with the ordinary working of the establishment" must be standardized nationally. To do so, the following questions will be addressed:
- what does "serious interference with the ordinary working of the establishment" mean?
- what criteria must an inspector review to determine whether the interference is severe enough to jeopardize the ordinary working of an establishment?
"Serious interference" in this context means a prejudice serious enough to fully or partially compromise one or more activities at the employer's establishment.
"Ordinary working 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 come to the conclusion 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 whether its operation would have been seriously affected.
In cases where only one activity was allegedly affected, the inspector must first try to determine what percentage of the activity in question was affected, and then examine the impact of this activity on the establishment's overall operations.
In cases where two or more activities were allegedly affected, the inspector should try to:
- determine the percentage to which each activity was affected and the impact of each on the establishment's general working
- if these activities, though separate, are interdependent with other activities, determine the impact that one affected activity may have had on another
- the inspector should 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 (train, cell, etc.), since the continuous activities of that network, by their nature, are not carried out within a physical establishment, the partial or total shut down of those activities could create a domino effect, negatively impacting the normal operation of several or all of this employer's establishments.
Finally, the inspector should also try to determine whether the employer took steps to cope with such interference before relying on the exception, i.e., to minimize its impact on the ordinary working of its establishment. If so, what steps did it manage to take? In certain circumstances, depending of the facts, an employer may not be able to take steps to avert an emergency.
Establishments not in continuous operation should have greater flexibility in handling such situations since the proposed measures could be taken outside the establishment's operating periods, during non-business hours or days.
On the other hand, establishments engaged in so-called continuous activities are more likely to be affected by this issue because continuous work can pose an additional constraint and cause contingencies like outages, breakages or emergencies during operations to interfere more significantly with an establishment's ordinary working. By their nature, such activity considerably limits an employer's flexibility since measures must be taken during the establishment's hours of operation (often 24/7).
The inspector may consider the following among other criteria when determining whether or not the ordinary working of an establishment was affected:
- the level of compromise inherent in the situation
- health and safety risks to employees and/or the public
- the number of employees affected
- the number of services, divisions and business lines affected
- the percentage of operations affected in relation to the company's total operations
- the financial consequences for the employer
- the number of operations unable to proceed
- the need and urgency of resuming activities
- legal obligations specific to the employer that it will not be able to meet
The pilot of an aircraft employed by a delivery service-type company refuses to work overtime due to family responsibilities. His flight was scheduled to leave at 2 p.m. but his cargo has still not arrived by departure time. The cargo is in the trailer of a truck stuck in traffic on Highway 15 after a pileup led to the highway’s closure for several hours. The aircraft is finally ready for take-off at about 6 p.m. If the pilot persists in his refusal:
- the aircraft containing all of the parcels does not leave
- airport receiving personnel are deployed needlessly and the truck driver expected to deliver the parcels to warehouses by ground transport
- warehouse dispatch personnel cannot take over
- the schedule of drivers assigned to customer delivery routes is disrupted
- the parcels are not delivered to clients on time
Result: The employer could not reasonably foresee the closure of Highway 15, and more than three activities, separate but interdependent on the prior activities, are affected. The inspector would therefore find serious interference with the establishment's working. In these circumstances, the exception to the limited right to refuse overtime due to family-related responsibilities would apply.
A bank's call centre manager is informed that four of a total of one hundred employees are absent. She makes an "emergency" call to an employee and forces her to return to work without giving her 24 hours' notice, in order to meet her customer service targets as usual.
Result: Since the percentage of work affected by these absences is minimal, such a situation would not constitute serious interference with the establishment's ordinary working. The inspector responsible for deciding the matter would find that the employer was not exempted from providing the employee with 24 hours' notice. The employer is therefore in violation of the Code.
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