By Jim Antler, Former Executive Director
On September 4, 2001, the new Employment Standards Act, 2000(ESA) came into effect in Ontario. The Act sets out basic rules for working in the province and details rights and responsibilities in the workplace. New features of the Act include:
- new minimum daily and weekly rest periods are protected by law for the first time;
- more part-time employees will be eligible for public holiday time off with pay;
- additional flexibility in scheduling employee vacations;
- length of parental leave extended (this provision came into force in 2000);
- escalating monetary penalties and increased fines for employers with repeat violations;
- employment standards officers gain more authority to issue orders to employers who do not comply with employment standards.
New Regulations for the Act have also been developed over the past several months and came into effect at the same time as the new Act. Highlights of how the Act and Regulations impact tourism businesses are highlighted below. In the meantime, if you want more information on the Act and Regulations, you can obtain information in several ways:
- call the Employment Standards Information Centre at 1-800-531-5551
- visit the Employment Standards Act section of the Ministry of Labour's website at http://www.labour.gov.on.ca/
- order copies of the Act and related information from the Ministry of Labour's Publication Sales Unit (1-800-809-4731, or through Publications Ontario at 1-800-668-9938)
This article does not include an overview of all sections of the new Act. I have highlighted those which I feel are of particular interest to our industry. However, I encourage each of you to get a copy of the new Act and regulations so you clearly understand how they will apply to your business.
Included in this mailing of The Outfitter is also a general brochure on the new Act and a publications order form.
Note that there are a number of exemptions from the Act's provisions that apply to the tourism industry. In this article, those exemptions will be noted after the highlighted sections of the Act.
In late March 2001, NOTO President Betty McGie and myself met with Ministry of Labour officials regarding the new Act and the process of developing the Regulations associated with the new Act. We lobbied for the Ministry to maintain many of the exemptions from the old Act for the tourism industry and they appeared to have listened. Therefore, many of the exemptions you will read about in the article have been carried over from the Regulations under the old Act.
Highlights Of The New Act For Tourism Businesses
PART VII - Hours Of Work And Eating Periods (sections 17-21)
WHAT THE ACT SAYS:
LIMIT ON HOURS OF WORK
17. (1) Subject to subsection (2), no employer shall require or permit an employee to work more than:
- eight hours in a day or, if the employer establishes a regular work day of more than eight hours for the employee, the number of hours in his or her regular work day; or
- 48 hours in a work week
EXCEPTION WHERE AGREEMENT
(2) An employer may permit an employee to work up to a specified number of hours in excess of an amount set out in subsection (1) if:
- the employee agrees to work those hours; and
- the employee will not work more than 60 hours or such other number of hours as are prescribed in a work week
(3) An employee may revoke an agreement under subsection (2) two weeks after giving written notice to the employer
(4) An employer may revoke an agreement under subsection (2) after giving reasonable notice to the employee.
HOURS FREE FROM WORK
18. (1) An employer shall give an employee a period of rest of at least 11 hours free from performing work in each day.
EXCEPTION
(2) Subsection (1) does not apply to an employee who is on call and called in during a period in which the employee would not otherwise be expected to perform work for his or her employer. Free from work between shifts
(3) An employer shall give an employee a period of at least eight hours free from the performance of work between shifts unless the total time worked on successive shifts does not exceed 13 hours or unless the employer and employee agree otherwise.
WEEKLY OR BIWEEKLY FREE TIME REQUIREMENTS
(4) An employer shall give an employee a period free from the performance of work equal to:
- at least 24 consecutive hours in every work week, or
- at least 48 consecutive hours in every period of two consecutive work weeks.
EXCEPTIONAL CIRCUMSTANCES
19. An employer may require an employee to work more than the maximum number of hours permitted under section 17 or to work during a period that is required to be free from performing work under section 18 only as follows, but only so far as is necessary to avoid serious interference with the ordinary working of the employer's establishment or operations:
- To deal with an emergency
- If something unforeseen occurs, to ensure the continued delivery of essential public services
- If something unforeseen occurs, to ensure that continuous processes or seasonal operations are not interrupted.
- To carry out urgent repair work to the employer's plant or equipment.
EATING PERIODS
20. (1) An employer shall give an employee an eating period of at least 30 minutes at intervals that will result in the employee working no more five consecutive hours without an eating period
(2) Subsection (1) does not apply if the employer and the employee agree, whether or not in writing, that the employee is to be given two eating periods that together total at least 30 minutes in each consecutive five-hour period.
PAYMENT NOT REQUIRED
21. An employer is not required to pay an employee for an eating period in which work is not being performed unless his or her employment contract requires such payment.
Exemption for Tourism (from Regulation 285/01)
Sections 17, 18, 19 of Act do not apply to a person employed as a fishing or hunting guide. An employer may permit an employee to work up to a specified number of hours in excess of the limit on hours of work set out in clause 17 (2) (b) of the Act if:
- the employee agrees to work those hours, and
- the Director approves the agreement
PART VIII - Overtime Pay (section 22)
WHAT THE ACT SAYS:
OVERTIME THRESHOLD
22. (1) An employer shall pay an employee overtime pay of at least one and one-half times his or her regular rate for each hour of work in excess of 44 hours in each week or, if another threshold is prescribed, that prescribed threshold.
AVERAGING AGREEMENTS
(2) Subject to the regulations, if the employee and the employer agree to do so, the employee's hours of work may be averaged over a period of not more than four weeks for the purpose of determining the employee's entitlement, if any, to overtime pay.
TERM OF AGREEMENT
(3) An averaging agreement is not valid unless it provides for an expiry date and, if it involves an employee who is not represented by a trade union, the expiry date shall be not more than two years after the day the agreement takes effect
AGREEMENT IRREVOCABLE
(6) No averaging agreement referred to in this section may be revoked before it expires unless the employer and the employee agree to revoke it.
TIME OFF IN LIEU
(7) The employee may be compensated for overtime hours by receiving one and one-half hours of paid time off work for each hour of overtime worked instead of overtime pay if:
- the employee andn the employer agree to do so; and
- the paid time off work is taken within three months of the work week in which the overtime was earned or, with the employee's agreement, within 12 months of that work week.
WHERE EMPLOYMENT ENDS
(8) If the employment of an employee ends before the paid time off is taken under subsection (7), the employer shall pay the employee overtime pay for the overtime hours that were worked in accordance with subsection 11(5).
CHANGING WORK
(9) If an employee who performs work of a particular kind or character is exempted from the application of this section by the regulations or the regulations prescribe an overtime threshold of other than 44 hours for an employee who performs such work, and the duties of an employee's position require him or her to perform both that work and work of another kind or character, the Part shall apply to the employee in respect of all work performed by him or her in a work week unless the time spent by the employee performing that other works constitutes less than half the time that the employee spent fulfilling the duties of his or her position in that work week.
Exemption for Tourism (from Regulation 285/01)
Part VIII of the Act does not apply to a person employed as a fishing or hunting guide. Despite Part VIII of the Act, the employer shall pay an employee who works for the owner or operator of a hotel, motel, tourist resort, restaurant or tavern for 24 weeks or less in a calendar year and who is provided with room and board overtime pay for each hour work in excess of 50 hours in a work week, at an amount not less than one and one-half time the employee's regular rate.
An employer and an employee may agree to average hours of work over a period of more than four weeks for the purpose of determining the employee's entitlement to overtime pay under section 22 of the Act if the Director approves the agreement.
PART IX - Minimum Wage (section 23)
For the most up to date information on minimum wage, including information about commission and room and board, please click here.
PART X - Public Holidays (Sections 24-32)
WHAT THE ACT SAYS:
PUBLIC HOLIDAY PAY
24.(1) An employee's public holiday pay for a given public holiday shall be equal to:
- the total amount of regular wages and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20; or
- if some other manner of calculation is prescribed the amount determined using that manner of calculation.
PREMIUM PAY
(2) An employer who is required under this Part to pay premium pay to an employee shall pay the employee at least one and one-half times his or her regular rate.
PUBLIC HOLIDAY ORDINARILY A WORKING DAY
26.(1) If a public holiday falls on a day that would ordinarily be a working day for an employee and the employee is not on vacation that day, the employer shall give the employee the day off work and pay him or her public holiday pay for that day.
EXCEPTION
(2) The employee has no entitlement under subsection (1) if he or she fails, without reasonable cause, to work all of his or her last regularly scheduled day of work before the public holiday or all of his or her first regularly scheduled day of work after the public holiday.
AGREEMENT TO WORK, ORDINARILY A WORKING DAY
27.(1) An employee and employer may agree that the employee will work on a public holiday that would ordinarily be a working day for that employee, and if they do, section 26 does not apply to the employee.... (note that there are 3 other sub-sections under section 27 but they are not reprinted here)
REQUIREMENT TO WORK ON A PUBLIC HOLIDAY; CERTAIN OPERATIONS
28.(1) If an employee is employed in a hospital, a continuous operation, or a hotel, motel, tourist resort, restaurant or tavern, the employer may require the employee to work on a public holiday that is ordinarily a working day for their employee and that is not a day on which the employee is on vacation, and if the employer does so, sections 26 and 27 do not apply to the employee
EMPLOYEE'S ENTITLEMENT
(2) Subject to subsections (3) and (4), if an employer requires an employee to work on a public holiday under subsection (1), the employer shall:
- pay to the employee wages at his or her regular rate for the hours worked on the public holiday and substitute another day that would ordinarily be a working day for the employee to take off work and for which he or she shall be paid public holiday pay as if the substitute day were a public holiday; or
- pay to the employee public holiday pay for the day plus a premium pay for each hour worked on that day...(note subsections 3 and 4 not reprinted due to length)
PUBLIC HOLIDAY, NOT ORDINARILY A WORKING DAY
29.(1) If a public holiday falls on a day that would not ordinarily be a working day for an employee or a day on which the employee is on vacation, the employer shall substitute another day that would ordinarily be a working day for the employee to take off work and for which he or she shall be paid public holiday pay as if the substitute day were a public holiday.
RESTRICTION
(2) A day that is substituted for a public holiday under subsection (1) shall be:
- a day that is no more than three months after the public holiday; or
- if the employee and the employer agree, a day that is not more than 12 months after the public holiday
AGREEMENT RE: PUBLIC HOLIDAY PAY
(3) An employer and an employee may agree that, instead of complying with subsection (1), the employer shall pay the employee public holiday pay for the public holiday, and if they do subsection (1) does not apply to the employee
PREMIUM PAY NOT OVERTIME HOURS
31. If an employee receives premium pay for working on a public holiday, the hours worked shall not be taken into consideration in calculating overtime pay to which the employee may be entitled.
Exemptions for Tourism (from Regulation 285/01)
Part X of the Act does not apply to a person employed as a fishing or hunting guide, or a person employed as a seasonal employee in a hotel, motel, tourist resort, restaurant or tavern and provided with room and board, or a person who is employed under an arrangement whereby he or she may elect to work or not when requested to do so.
Under the Regulation, a "hotel, motel, tourist resort, restaurant and tavern" means an establishment that provides accommodation, lodging, meals or beverages for payment, and includes hotels, motels, motor hotels, tourist homes, tourist camps, tourist cabins and cottages, tourist inns, catering establishments and all other establishments of a similar nature.
A "seasonal employee" is defined as an employee who works not more than 16 weeks in a calendar year for an employer.
PART XI - Vacation With Pay (Sections 33-41)
WHAT THE ACT SAYS:
RIGHT TO VACATION
33.(1) An employer shall give an employee a vacation of at least two weeks after each 12 months the employee is employed
TIMING OF VACATION
34.(1) The employer shall determine when an employee shall take his or her vacation, subject to the following rule:
- The vacation must be completed no later than 10 months after the end of the 12-month period for which it is given.
- The vacation must be a two-week period or two periods of one week each, unless the employee requests in writing that the vacation must be taken in shorter periods and the employer agrees to that request.
Further Clarification (from Regulation 185/01)
If an employee has been employed by the employer for 13 weeks or more, the employer shall, in accordance with Part XI of the Act:
- give the employee a vacation with pay.
- pay the employee vacation pay.
In closing, the above is only meant to point out several important sections of the Act and regulations that tourist operators should be aware of. Please contact the Ministry of Labour if you have any questions about the Act or Regulations, or to seek clarification on some of the sections highlighted in this article.
This article was taken from pages 10-13 of NOTO's "The Outfitter" publication, Fall 2001 Issue
