Canada Labour Code, Part III - Division 1- -IPG-110 Elect-to-work and On-Call or Standby employees

Effective date: February 1, 2022

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

On this page

This interpretation, policy and guideline (IPG) is not applicable to classes of employees who are subject to the exemptions or modifications to sections 173.01 and 173.1 as per the regulations. For more information on classes of employees in relation to the exemptions and modifications, visit Exemptions from and Modifications to Hours of Work Regulations. The regulatory development for Phase 2 sectors is currently underway.

Purpose

This IPG aims to clarify how sections 173.01 and 173.1 of Part III of the Canada Labour Code (the Code) apply to certain employees that have:

Note: The Department of Employment and Social Development published on February 22, 2020 a government notice to clarify the Application of sections 173.01 and 173.1 of the Code to on-call and standby employees which states:

Notice is therefore given that the Minister of Labour considers that an employer who provides an employee with their work schedule in writing at least 96 hours before the start of the employee’s first work period or shift under that schedule, and includes in that work schedule any period during which the employee is scheduled to be on-call or on standby, satisfies the requirements of section 173.01 of the Code. An employee may refuse to work any work period or shift in their schedule, including any period of on-call or standby, that starts within 96 hours from the time the schedule is provided to them.

Notice is therefore also given that the Minister of Labour considers that an employer who gives an employee written notice of 24 hours before the employer changes a work period or shift during which an employee is due to work or adds another work period or shift to the employee’s schedule, including giving written notice of 24 hours before adding or changing a period where the employee is scheduled to be on-call or on standby, satisfies the requirements of section 173.1 of the Code.

Issue

The following provisions in the Code came into force on September 1, 2019:

To ensure a consistent interpretation and national application of the above sections of the Code, clarification is required on how the provisions on notice of work schedule and shift changes apply to certain employment categories.

There is a need to clarify in which manner sections 173.01 and 173.1 of the Code apply to the following categories of employment:

Definitions

Elect-to-work employees:

Employees who are free to decide to work or not when their employer offers them a work assignment. These employees can choose to work or not without any penalty or adverse effect on their employment.

On-call or standby employees:

Employees who are called in by their employer to work during a specific period. The employer expects these employees to report to work if called upon to do so.

Other terms for the categories of employment defined in this IPG 

Employers may use other terms in different sectors or workplaces to refer to the categories of employment; elect-to-work, on-call or standby. However, if a type of employment matches the description of any of the categories of employment defined in this IPG, it should be considered as an elect-to-work, on-call or standby employment situation.

Interpretation

The Labour Program’s position on the application of sections 173.01 and 173.1 of the Code for elect-to-work and on-call or standby employees is as follows.

The code now includes sections 173.01 and 173.1 to help employees achieve a better work-life balance, by providing them with advance notice of:

The explanations below will assist in determining whether elect-to-work and on-call or standby employees are considered to have received the notice as per sections:

An employer satisfies the requirement of section 173.01 of the Code if they provide their employee with a written notice of their work schedule:

An employer satisfies the requirements of section 173.1 of the Code if they provide their employee with 24 hours’ written notice before:

When employees receive written notice to be on-call or standby, it would be unreasonable to conclude that these employees did not receive a notice as per sections 173.01 and 173.1 of the Code. This is because the employer notified the employees of their status for this given period.

Sections 173.01 and 173.1 of the Code do not apply to elect-to-work employees as they are in complete control of their schedule. The only way this category of employees work is if they choose to make themselves available.

Complaint

If an employee files a non-monetary complaint related to the 24 hours’ written notice of shift changes or 96 hours’ advance notice of work schedules, a Labour Affairs Officer will consider the following criteria when making a determination:

Examples

Example 1

Joe works the day shift from Monday to Thursday for a total of 32 hours per week. As Joe agreed with his employer when he was hired, he is required to remain on standby to work the day shift on Fridays. Joe’s manager calls him Thursday evening asking him to report for work on Friday morning. Joe took the shift on the Friday. He then files a complaint with the Labour Program alleging he was not provided with 24 hours notice of shift change. The Labour Affairs Officer determined that the employer did not contravene the Code. The investigation showed that Joe was aware and had agreed to be on-call on Fridays.

Example 2

Wanda has a work schedule that her employer planned over a 4-week period. When she receives her schedule for the next 4 weeks, she notices that she is on standby on the Monday and Tuesday in the third week. Although Wanda’s employer did not schedule her to work that week, she knows that this could change up to the last minute and her employer might call her in to work. If Wanda’s employer calls her in to work on the Monday and/or Tuesday during the third week, she would be presumed to have received her 24-hour shift change notice as per section 173.1 of the Code. This is because as stated in government notice an employer who provides 24 hours’ written notice before adding or changing a period where the employee is scheduled to be on-call or on standby, satisfies the requirements of section 173.1 of the Code.

Example 3

Ming works Monday to Thursday every week. His employment contract states that he must remain available to work every other weekend on Saturdays, when the employer receives last-minute contracts. The Saturdays on which he must be available appear clearly on his team calendar. Ming files a complaint under section 173.1 because his employer called him in to work with only a few minutes’ notice on a Saturday for which he is on-call. The Labour Affairs Officer deems Ming’s complaint to be unfounded. This is because the employer has demonstrated that Ming was aware he was on-call when the alleged contravention occurred. Therefore, the employer complied with section 173.1 of the Code.

Example 4

Jacob works Tuesday to Friday and must remain available every Saturday. The employer calls Jacob on Saturday with a 12-hour notice, asking him to come in to do the inventory on the next day, Sunday. Jacob later files a complaint under section 173.1 because he did not receive a 24-hour notice. The Labour Affairs Officer deems Jacob’s complaint to be founded. This is because Sunday did not fall within the established period where his employer could call him in to work. Jacob’s employer did not schedule him to be on-call on Sunday. This adds a work shift on Sunday for which his employer must provide 24 hours’ notice. Therefore, the employer is in contravention of section 173.1 of the Code.

Example 5

Micheline is employed in a workplace where she is free to choose the days on which she is available to work for her employer as per their agreement. When she wants to work, she calls the employer in the morning to advise him of her availability. Micheline is an elect-to-work employee who controls her own schedule (as defined above). A complaint filed by Micheline under sections 173.01 or 173.1 would therefore be unfounded.

Example 6

Rachid, a computer specialist, has no specific schedule and is called in according to his employer’s needs. The employer calls substitute computer specialists to work by seniority. The specialist with the most seniority will be offered work before the least senior specialists.  This type of employee can choose to make themselves available for a shift or not. Minimum availability is required under the employment contract and Rachid informs the employer monthly of the shifts during which he is available to work. Rachid therefore selected the shifts during which he would be on standby in advance. His employer also informed him that he could be called in during the shifts in question. Rachid’s availability during the periods he chooses constitutes notice of his schedule and schedule changes.

Report a problem or mistake on this page
Please select all that apply:

Thank you for your help!

You will not receive a reply. For enquiries, contact us.

Date modified: