Exemptions from and Modifications to Hours of Work Provisions Regulations: SOR/2021-200

Canada Gazette, Part II, Volume 155, Number 18

Registration
SOR/2021-200 August 12, 2021

CANADA LABOUR CODE

P.C. 2021-870 August 11, 2021

Whereas the Governor in Council is of the opinion that the application of certain provisions of Division I of Part III of the Canada Labour Code footnote a, without modification, to certain classes of employees who are employed in or in connection with the operation of certain industrial establishments would be or is unduly prejudicial to the interests of the employees in those classes or would be or is seriously detrimental to the operation of those industrial establishments;

And whereas the Governor in Council is satisfied that certain provisions of Division I of Part III of the Canada Labour Code footnote a cannot reasonably be applied to certain classes of employees;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Labour, pursuant to paragraphs 175(1)(a) footnote b and (b) footnote c and subsection 270(1) footnote d of the Canada Labour Code footnote a, makes the annexed Exemptions from and Modifications to Hours of Work Provisions Regulations.

Exemptions from and Modifications to Hours of Work Provisions Regulations

Definition

Definition of Act

1 In these Regulations, Act means the Canada Labour Code.

PART 1

Road Transportation Sector and Postal and Courier Sector

Application

2 This Part applies to persons who are employed in the road transportation sector or the postal and courier sector.

Transport of goods

3 The following employees in the road transportation sector who operate a motor vehicle that is used to transport goods and that has a gross combination weight rating in excess of 4 500 kg are exempt from the application of sections 169.1, 169.2, 173.01 and 173.1 of the Act:

  • (a) city motor vehicle operators, as defined in section 2 of the Motor Vehicle Operators Hours of Work Regulations; and
  • (b) highway motor vehicle operators, as defined in section 2 of those Regulations.

Transport of mail or parcels

4 (1) The following employees in the postal and courier sector who operate a motor vehicle that is used to transport mail or parcels are exempt from the application of section 173.1 of the Act:

  • (a) city motor vehicle operators, as defined in section 2 of the Motor Vehicle Operators Hours of Work Regulations; and
  • (b) highway motor vehicle operators, as defined in section 2 of those Regulations.

Modification — subsection 169.1(1) of the Act

(2) With respect to employees referred to in subsection (1), subsection 169.1(1) of the Act is modified as follows:

Break

169.1 (1) Every employee is entitled to and shall be granted an unpaid break of at least 30 minutes for every period of five consecutive hours of work. The employer may grant this break at any time during the work period or shift and it may be divided into periods of at least 15 minutes. If the employer requires the employee to be at their disposal during the break period, the employee is to be paid for the break.

Motor coach operators

5 (1) Motor coach operators who are not employed by a municipal or provincial transit authority are exempt from the application of sections 169.1, 169.2, 173.01 and 173.1 of the Act.

Definition of motor coach

(2) For the purpose of this section, motor coach means a bus that is designed for intercity passenger transport and that is not equipped with features to accommodate standing passengers.

Armoured car crew members

6 Armoured car crew members are exempt from the application of section 173.1 of the Act.

Warehouse workers, shippers or receivers

7 The following employees are exempt from the application of section 173.1 of the Act:

  • (a) warehouse workers who handle, move, load and unload materials by hand or by means of material handling equipment;
  • (b) shippers; and
  • (c) receivers.

Dispatchers

8 Dispatchers are exempt from the application of section 173.1 of the Act.

Mechanics

9 Mechanics are exempt from the application of section 173.1 of the Act.

PART 2

Marine Sector

Application

10 This Part applies to persons who are employed in the marine sector.

Employees of long-shoring operations

11 (1) Dockworkers, longshore persons, shiploader operators, stevedores, barge loaders, boat loaders, dock hands, dockpersons, lumpers, checkers, planners, tower loader operators, wharfpersons, tanker loaders, machinery operators, stowers, tradespersons, marine agents, dispatchers and mechanics who are employed in long-shoring operations are exempt from the application of sections 173.01 and 173.1 of the Act.

Modifications — subsection 169.1(1) and section 169.2 of the Act

(2) With respect to employees referred to in subsection (1),

  • (a) subsection 169.1(1) of the Act is modified as follows:

Break

169.1 (1) Every employee is entitled to and shall be granted an unpaid break of at least 30 minutes for every period of five consecutive hours of work. The employer may grant the break at any time during the work period or shift and it may be divided into periods of at least 15 minutes. If the employer requires the employee to be at their disposal during the break period, the employee is to be paid for the break.

  • (b) subsection 169.2(1) of the Act is modified as follows:

Rest period

169.2 (1) Every employee is entitled to and shall be granted a rest period of at least eight consecutive hours during each 24-hour period in which they work a work period or shift.

  • (c) subsection 169.2(2) of the English version of the Act is modified as follows:

Exception

(2) Despite subsection (1), an employer may require that an employee work additional hours to their scheduled work periods or shifts, which would result in them having a rest period of fewer than eight consecutive hours during each 24-hour period in which they work a work period or shift, if it is necessary for the employee to work in order to deal with a situation that the employer could not have reasonably foreseen and that presents or could reasonably be expected to present an imminent or serious

  • (a) threat to the life, health or safety of any person;
  • (b) threat of damage to or loss of property; or
  • (c) threat of serious interference with the ordinary working of the employer's industrial establishment.

Supervisors in long-shoring operations

12 (1) Forepersons, foreperson checkers, walking bosses, head checkers and terminal planners who are employed in long-shoring operations are exempt from the application of sections 169.2, 173.01 and 173.1 of the Act.

Modification — subsection 169.1(1) of the Act

(2) With respect to employees referred to in subsection (1), subsection 169.1(1) of the Act is modified as follows:

Break

169.1 (1) Every employee is entitled to and shall be granted an unpaid break of at least 30 minutes for every period of five consecutive hours of work. The employer may grant the break at any time during the work period or shift and it may be divided into periods of at least 15 minutes. If the employer requires the employee to be at their disposal during the break period, the employee is to be paid for the break.

Employees on board vessel

13 (1) The following employees who are employed on board a vessel are exempt from the application of sections 173.01 and 173.1 of the Act:

  • (a) masters;
  • (b) deck officers;
  • (c) engineering officers;
  • (d) radio operators;
  • (e) electrotechnical officers; and
  • (f) ratings.

Modifications — subsection 169.1(1) and section 169.2 of the Act

(2) With respect to employees referred to in subsection (1),

  • (a) subsection 169.1(1) of the Act is modified as follows:

Break

169.1 (1) Every employee is entitled to and shall be granted an unpaid break of at least 30 minutes for every period of five consecutive hours of work. The employer may grant this break at any time during the work period or shift and it may be divided into periods of at least 15 minutes. If the employer requires the employee to be at their disposal during the break period, the employee is to be paid for the break.

  • (b) subsection 169.2(1) of the Act is modified as follows:

Rest period

169.2 (1) Every employee is entitled to and shall be granted a rest period of at least eight hours, with at least six of those hours being consecutive, during each 24-hour period in which they work a work period or shift.

  • (c) subsection 169.2(2) of the English version of the Act is modified as follows:

Exception

(2) Despite subsection (1), an employer may require that an employee work additional hours to their scheduled work periods or shifts, which would result in them having a rest period of fewer than eight hours in total or fewer than six consecutive hours during each 24-hour period in which they work a work period or shift, if it is necessary for the employee to work in order to deal with a situation that the employer could not have reasonably foreseen and that presents or could reasonably be expected to present an imminent or serious

  • (a) threat to the life, health or safety of any person;
  • (b) threat of damage to or loss of property; or
  • (c) threat of serious interference with the ordinary working of the employer's industrial establishment.

Operations controllers

14 With respect to operations controllers who are engaged in dispatching marine traffic or in bridge, lock and weir operations, subsection 169.1(1) of the Act is modified as follows:

Break

169.1 (1) Every employee is entitled to and shall be granted an unpaid break of at least 30 minutes for every period of five consecutive hours of work. The employer may grant this break at any time during the work period or shift and it may be divided into periods of at least 15 minutes. If the employer requires the employee to be at their disposal during the break period, the employee is to be paid for the break.

Marine pilots

15 (1) Marine pilots who are employed in a compulsory pilotage area are exempt from the application of section 169.1 of the Act.

Modification — section 169.2 of the Act

(2) With respect to employees referred to in subsection (1),

  • (a) subsection 169.2(1) of the Act is modified as follows:

Rest period

169.2 (1) Every employee is entitled to and shall be granted a rest period of at least eight hours, with at least six of those hours being consecutive, during each 24-hour period in which they work a work period or shift.

  • (b) subsection 169.2(2) of the English version of the Act is modified as follows:

Exception

(2) Despite subsection (1), an employer may require that an employee work additional hours to their scheduled work periods or shifts, which would result in them having a rest period of fewer than eight hours in total or fewer than six consecutive hours during each 24-hour period in which they work a work period or shift, if it is necessary for the employee to work in order to deal with a situation that the employer could not have reasonably foreseen and that presents or could reasonably be expected to present an imminent or serious

  • (a) threat to the life, health or safety of any person;
  • (b) threat of damage to or loss of property; or
  • (c) threat of serious interference with the ordinary working of the employer's industrial establishment.

Marine pilot boat personnel

16 With respect to launch masters, pilot boat captains, marine engineers and deckhands employed in marine pilotage services,

  • (a) subsection 169.1(1) of the Act is modified as follows:

Break

169.1 (1) Every employee is entitled to and shall be granted an unpaid break of at least 30 minutes for every period of five consecutive hours of work. The employer may grant this break at any time during the work period or shift and it may be divided into periods of at least 15 minutes. If the employer requires the employee to be at their disposal during the break period, the employee is to be paid for the break.

  • (b) subsection 169.2(1) of the Act is modified as follows:

Rest period

169.2 (1) Every employee is entitled to and shall be granted a rest period of at least eight hours, with at least six of those hours being consecutive, during each 24-hour period in which they work a work period or shift.

  • (c) subsection 169.2(2) of the English version of the Act is modified as follows:

Exception

(2) Despite subsection (1), an employer may require that an employee work additional hours to their scheduled work periods or shifts, which would result in them having a rest period of fewer than eight hours in total or fewer than six consecutive hours during each 24-hour period in which they work a work period or shift, if it is necessary for the employee to work in order to deal with a situation that the employer could not have reasonably foreseen and that presents or could reasonably be expected to present an imminent or serious

  • (a) threat to the life, health or safety of any person;
  • (b) threat of damage to or loss of property; or
  • (c) threat of serious interference with the ordinary working of the employer's industrial establishment.

Dispatchers

17 With respect to dispatchers who are engaged in the assignment of marine pilots, launch masters, marine engineers and deckhands, subsection 169.1(1) of the Act is modified as follows:

Break

169.1 (1) Every employee is entitled to and shall be granted an unpaid break of at least 30 minutes for every period of five consecutive hours of work. The employer may grant this break at any time during the work period or shift and it may be divided into periods of at least 15 minutes. If the employer requires the employee to be at their disposal during the break period, the employee is to be paid for the break.

PART 3

Grain Sector

Application

18 This Part applies to persons who are employed in the grain sector.

Elevator operators

19 Elevator operators, inland terminal elevator operators and port terminal elevator operators who are employed in grain handling facilities are exempt from the application of section 173.1 of the Act.

Railcar spotters, warehouse workers and grain receivers

20 Railcar spotters, warehouse workers and grain receivers who are employed in grain handling facilities are exempt from the application of section 173.1 of the Act.

Millwrights, electricians, power engineers and welders

21 Millwrights, electricians, power engineers and welders who are employed in grain handling or grain milling facilities are exempt from the application of section 173.1 of the Act.

Laboratory technicians and supervisors

22 Laboratory technicians and laboratory supervisors who are employed in grain handling or grain milling facilities are exempt from the application of section 173.1 of the Act.

Grading, quality assurance and inspection of grain

23 Employees who are involved in the grading, quality assurance and inspection of grain and who are employed in grain handling facilities are exempt from the application of section 173.1 of the Act.

Grain cleaning operators

24 Grain cleaning operators who are employed in grain milling facilities are exempt from the application of section 173.1 of the Act.

Millers, assistant millers and other operators

25 Millers, assistant millers, packing equipment operators and bulk load out operators who are employed in grain milling facilities are exempt from the application of section 173.1 of the Act.

Related Amendment

Administrative Monetary Penalties (Canada Labour Code) Regulations

26 Part 2 of Schedule 2 to the Administrative Monetary Penalties (Canada Labour Code) Regulations footnote 1 is amended by adding the following after Division 5:

DIVISION 6

Exemptions from and Modifications to Hours of Work Provisions Regulations
Item

Column 1

Provision

Column 2

Violation Type

1 4(2) C
2 11(2)(a) C
3 11(2)(b) C
4 12(2) C
5 13(2)(a) C
6 13(2)(b) C
7 14 C
8 15(2)(a) C
9 16(a) C
10 16(b) C
11 17 C

Coming into Force

February 1, 2022

27 These Regulations come into force on February 1, 2022.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Amendments to Part III (Labour Standards) of the Canada Labour Code (the Code) came into force on September 1, 2019, to support work-life balance by providing employees with more predictability in relation to their hours of work. Specifically, the new hours of work provisions require employers to provide their employees with at least 96 hours' written notice of their work schedules, at least 24 hours' written notice of shift changes or additions, an unpaid break of at least 30 minutes during every period of 5 consecutive hours of work, and a rest period of 8 consecutive hours between work periods or shifts.

Employers in industries with continuous 24/7 operations in the road transportation, postal and courier, marine (pilotage, marine transportation, long-shoring), and grain (handling/elevators and milling) sectors have indicated that they are unable to fully meet these new obligations. These industries are often subject to variables beyond their control, which restrict their ability to plan for staffing levels and provide breaks, rest periods, schedules and notice of shift changes ahead of time. For example, weather patterns can have significant impacts on operations and staffing requirements for the marine sector, and customer demand can make staffing needs unpredictable in the road transportation and postal and courier sectors.

Additionally, some industries are subject to other federal regulations, including those administered by Transport Canada, such as the Marine Personnel Regulations and the Commercial Vehicle Drivers Hours of Service Regulations, which mandate safety requirements (i.e. safe manning and crew complement requirements) and place restrictions on hours of service. There are instances where these hours of service requirements are misaligned with the new hours of work provisions of the Code, presenting additional challenges for employers to meet both obligations.

Amendments to the Code also include regulation-making authority for the Governor in Council to modify provisions that would be unduly prejudicial to the interests of certain classes of employees or seriously detrimental to the operation of an industrial establishment, and to exempt classes of employees from the application of any provisions that cannot reasonably be applied to them. The operational reality in sectors such as the road transportation, postal and courier, marine, and grain sectors is of a 24/7 continuous nature and is such that the flexibility in the Exemptions from and Modifications to Hours of Work Provisions Regulations (the Regulations) is required.

Background

New hours of work provisions

New hours of work provisions were added to Part III of the Code through amendments contained in the Budget Implementation Act, 2017, No. 2 (Bill C-63) and the Budget Implementation Act, 2018, No. 2 (Bill C-86) to support employees' work-life balance. These provisions are outlined in Table 1.

Table 1: New hours of work provisions
Section of the Code Provision Description
169.1 30-minute break Employers must provide employees with a break of at least 30 minutes during every period of 5 consecutive hours of work. The break is unpaid, unless the employer requires the employee to be at their disposal during the break period.
169.2 8-hour rest period Employers must provide employees with a rest period of at least 8 consecutive hours between work periods or shifts.
173.01 96 hours' notice of work schedule Employers must provide employees with their work schedule, in writing, at least 96 hours before the employee's first work period or shift in that schedule. Employees may refuse to work any work period or shift in their schedule that starts within 96 hours from the time that the schedule is provided to them. This provision does not apply to employees subject to a collective agreement that specifies an alternate notice period or provides that this requirement does not apply.
173.1 24 hours' notice of shift change Employers must provide employees with at least 24 hours' notice, in writing, of a shift change or addition.

Application of the new hours of work provisions

Part III of the Code establishes basic labour standards (e.g. payment of wages, protected leaves) for persons employed in federal Crown corporations and federally regulated private sector industries, such as

  • international and interprovincial transportation by land and sea, including railways, shipping, trucking and bus operations;
  • airports and airlines;
  • port operations;
  • telecommunications and broadcasting;
  • banks;
  • industries declared by Parliament to be for the general advantage of Canada or of two or more provinces, such as grain handling and uranium mining; and
  • First Nations band councils.

Part III of the Code does not apply to the federal public service.

All other workplaces, which make up over 90% of the Canadian workforce, are under provincial labour jurisdiction. The new hours of work provisions are applicable to all workplaces subject to Part III of the Code, with certain exceptions and exemptions.

Exceptions and exemptions

The new hours of work provisions do not apply to managers and certain professionals (architects, dentists, engineers, lawyers and medical doctors). Furthermore, the requirement for employers to provide 96 hours' notice of work schedules and 24 hours' notice of shift change do not apply to a change that results from an employee's request for a flexible work arrangement, under subsection 177.1(1) of the Code, that is accepted by the employer.

The new hours of work provisions mentioned previously are also all subject to an exception for unforeseeable emergencies, which is set out in Part III of the Code. This exception applies in a situation that the employer could not have reasonably foreseen and that could reasonably be expected to present an imminent or serious threat to the life, health or safety of any person; threat of damage to or loss of property; or threat of serious interference with the ordinary working of the employer's industrial establishment. Guidance on the application of the unforeseeable emergency exception is available online in the Interpretations, Policies and Guidelines (IPGs) published by the Labour Program.

Section 175 of the Code provides the Governor in Council with the power to make regulations modifying the application of hours of work provisions to certain classes of employees who are employed in or in connection with the operation of any industrial establishment if, in the opinion of the Governor in Council, their application without modification would be

  • unduly prejudicial to the interests of a class of employees; or
  • seriously detrimental to the operation of the industrial establishment.

The Code also provides authority for the Governor in Council to make regulations exempting any class of employees from the application of hours of work provisions if satisfied that these provisions cannot reasonably be applied to that class of employees.

In the absence of regulations providing modifications or exemptions to the new provisions and recognizing the unique operational requirements for certain classes of employees in 24/7 continuous operations, the Labour Program issued Interpretations, Policies and Guidelines 101 (the Interim Measure). This stated that employers may continue to apply the hours of work provisions that existed in the Code prior to September 1, 2019, with respect to targeted classes of employees for specific provisions of the Code. This Interim Measure is not designed to deny employees their right to file a complaint. The Labour Program can still investigate a complaint related to any of these hours of work provisions according to the existing complaint handling policy. An Assurance of Voluntary Compliance (AVC) can be issued and additional education and support measures provided to an employer to achieve compliance while work continues on the development of hours of work exemption and modification regulations. To ensure transparency and nationwide consistency of terminology, National Occupational Classification (NOC) codes were used to identify the targeted categories of employees.

Government notice regarding the application of the 96 hours' notice of work schedule and the 24 hours' notice of shift change with respect to on-call and standby workers

On February 22, 2020, a government notice, entitled Application of sections 173.01 and 173.1 of the Canada Labour Code to on-call and standby employees (the Notice) was published in the Canada Gazette, Part I. The Notice clarified how the 96 hours' notice of work schedule and the 24 hours' notice of shift change apply with respect to employees who work on the basis of on-call and standby arrangements. The Notice also informed stakeholders that regulations would be forthcoming.

Specifically, the Notice clarifies that, with respect to an on-call or standby employee, an employer satisfies the requirement to provide 96 hours' notice of a work schedule under section 173.01 of the Code if they provide the employee with their schedule at least 96 hours before the start of the first work period or shift under that schedule, and includes in that work schedule any period during which the employee will be on call or on standby. Similarly, an employer satisfies the requirement to provide 24 hours' notice of a shift change under section 173.1 of the Code if they provide 24 hours' notice before adding or changing a period during which the employee will be on call or on standby.

The Notice recognizes that on-call and standby arrangements, which may be part of a collective agreement or an individual employment contract, can be a legitimate business practice to deal with unforeseeable labour needs.

Phased approach to regulatory development

A phased approach has been adopted with respect to the development of regulations concerning exemptions and modifications to the new hours of work provisions. The first phase of regulatory development includes sectors from which extensive stakeholder feedback was received just before the COVID-19 pandemic, namely the road transportation, postal and courier, marine (pilotage, marine transportation and long-shoring), and grain (handling/elevators and milling) sectors.

The pandemic prevented stakeholders in other sectors, including aviation, telecommunications and broadcasting, and rail transportation from making submissions following the second round of consultations held in February and March 2020. Regulations specific to these sectors are under development and the Interim Measure will continue to apply in specified sectors in the meantime.

Administrative monetary penalties

On January 1, 2021, the new Part IV of the Code was brought into force to promote compliance with requirements under Part II (Occupational Health and Safety) and Part III (Labour Standards) of the Code. The Administrative Monetary Penalties (Canada Labour Code) Regulations (the AMPs Regulations) designate and classify violations of obligations under Part II and Part III of the Code and its associated regulations for which an administrative monetary penalty (AMP) may be issued. Only violations specified in the AMPs Regulations can be subject to an AMP.

Designated labour standards violations are listed and classified under Schedule 2 of the AMPs Regulations. When amendments are made to Part III of the Code or one of its associated regulations, Schedule 2 of the AMPs Regulations is updated to reflect any new potential violations.

The AMPs Regulations specify the method used to determine the amount of an AMP in a given situation when issuing a notice of violation. The baseline penalty amount applicable to a violation varies depending on the category of person or department believed to have committed a violation and the classification of the violation. With respect to obligations under Part III of the Code, each designated violation is classified as either Type A, B, C or D, in order of increasing severity, according to the level of risk and/or the impact of the violation as outlined in Table 2.

Table 2: Classification method for violations under Part III of the Code
Type Description
Related to administrative provisions.
Related to the calculation and payment of wages.
Related to leave or other requirements, which could have an impact on financial security, or health and safety, of an individual or group of individuals.
Related to the employment and protection of employees who are minors.

Amendments to the AMPs Regulations are needed to ensure that requirements set out in the Regulations can be subject to an AMP. Violations of these requirements are classified to be the same type as violations of the Code provisions that are modified by the Regulations.

Objective

The primary objective of the Regulations is to support the implementation of new hours of work provisions (sections 169.1, 169.2, 173.01 and 173.1 of the Code) in order to balance the operational realities of certain industries with the legislative goal of providing employees with work-life balance and more predictability in relation to their hours of work.

Description

The Regulations will provide exemptions from and modifications to the hours of work provisions for specific classes of employees. Classes of employees are defined on the basis of occupations or job titles commonly used in each sector and objective characteristics of the work performed. The Regulations are summarized in the tables below.

Table 3.1: Employee classes — Road transportation and postal and courier sectors
Name of employee class 96 hours' notice of work schedule 24 hours' notice of shift change 8-hour rest period 30-minute break
Highway motor vehicle operators and city motor vehicle operators in the road transportation sector who operate a motor vehicle for the transport of goods with a gross combination weight rating over 4 500 kg E table 4 note a E E E
Highway motor vehicle operators and city motor vehicle operators in the postal and courier sector who operate a motor vehicle for the transport of mail or parcels   E   M3 table 4 note b
Motor coach operators who are not employed by a municipal or provincial transit authority E E E E
Armoured car crew members   E    
Warehouse workers who handle, move, load and unload materials by hand or by means of material handling equipment, shippers, and receivers   E    
Dispatchers   E    
Mechanics   E    

Table 4 note(s)

Table 4 note a

E: An exemption is granted for the specified class of employees.

Return to table 4 note a referrer

Table 4 note b

M3: A modification to the provision regarding the 30-minute break provides that the specified employees are entitled to at least a 30-minute break for every period of 5 consecutive hours of work, which can be split into periods of at least 15 minutes and provided at any time during the work period or shift.

Return to table 4 note b referrer

Table 3.2: Employee classes — Marine sector
Name of employee class 96 hours' notice of work schedule 24 hours' notice of shift change 8-hour rest period 30-minute break
Dispatchers who are engaged in the assignment of marine pilots, launch masters, marine engineers and deckhands       M3 table 5 note a
Marine pilots who are employed in a compulsory pilotage area     M1 table 5 note b E table 5 note c
Launch masters, pilot boat captains, marine engineers and deckhands employed in marine pilotage services     M1 M3
Masters, deck officers, engineering officers, radio operators, electrotechnical officers, and ratings employed on board a vessel E E M1 M3
Operations controllers engaged in dispatching marine traffic or in bridge, lock and weir operations       M3
Dockworkers, longshore persons, shiploader operators, stevedores, barge loaders, boat loaders, dock hands, dockpersons, lumpers, checkers, planners, tower loader operators, wharfpersons, tanker loaders, machinery operators, stowers, tradespersons, marine agents, dispatchers and mechanics employed in long-shoring operations E E M2 table 5 note d M3
Forepersons, foreperson checkers, walking bosses, head checkers and terminal planners employed in long-shoring operations E E E M3

Table 5 note(s)

Table 5 note a

M3: A modification to the provision regarding the 30-minute break provides that the specified employees are entitled to at least a 30-minute break for every period of 5 consecutive hours of work, which can be split into periods of at least 15 minutes and provided at any time during the work period or shift.

Return to table 5 note a referrer

Table 5 note b

M1: A modification to the provision regarding the 8-hour rest between work periods or shifts provides that the specified employees are entitled to a rest period of at least 8 hours, at least 6 of which must be consecutive, within each 24-hour period in which they work a work period or shift. The unforeseeable emergency exception under subsection 169.2(2) of the Code continues to apply to classes of employees subject to this modification.

Return to table 5 note b referrer

Table 5 note c

E: An exemption is granted for the specified class of employees.

Return to table 5 note c referrer

Table 5 note d

M2: A modification to the provision regarding the 8-hour rest between work periods or shifts provides that the specified employees are entitled to a rest period of at least 8 consecutive hours within each 24-hour period in which they have a work period or shift. The unforeseeable emergency exception under subsection 169.2(2) of the Code continues to apply to classes of employees subject to this modification.

Return to table 5 note d referrer

Table 3.3: Employee classes — Grain sector
Name of employee class 96 hours' notice of work schedule 24 hours' notice of shift change 8-hour rest period 30-minute break
Elevator operators, inland terminal elevator operators and port terminal elevator operators who are employed in grain handling facilities   E table 6 note a    
Railcar spotters, warehouse workers and grain receivers who are employed in grain handling facilities   E    
Millwrights, electricians, power engineers and welders who are employed in grain handling or grain milling facilities   E    
Laboratory technicians and supervisors who are employed in grain handling or grain milling facilities   E    
Employees who are involved in the grading, quality assurance and inspection of grain who are employed in grain handling facilities   E    
Millers, assistant millers, packing equipment operators, and bulk load out operators who are employed in grain milling facilities   E    
Grain cleaning operators who are employed in grain milling facilities   E    

Table 6 note(s)

Table 6 note a

E: An exemption is granted for the specified class of employees.

Return to table 6 note a referrer

The AMPs Regulations are also amended to provide that violations of provisions modified by the Regulations (those identified as M1, M2 and M3 in the tables above) constitute Type C violations.

Regulatory development

Consultation

Initial feedback from the first round of consultations — Summer 2019

A technical meeting was held for each of the following six sectors: the broadcasting and telecommunications sector, the air transportation sector, the rail transportation sector, the postal and courier sector, the road transportation sector, and the marine sector (pilotage, marine transportation and long-shoring). A total of 68 employer groups and 25 labour and community organizations attended these meetings, and written submissions were received from over 65 stakeholder groups.

Employer and employee groups expressed diverging views regarding the need for exemptions from or modifications to the Code's new hours of work provisions. Many employers raised significant concerns about the impact of these provisions on continuous operations, as well as their ability to respond to fluctuating customer demand and other conditions over which they have little or no control (e.g. weather, market pressures, employee absences). They expressed worries about their ability to remain competitive while complying with the new hours of work provisions in addition to other regulatory obligations (e.g. requirements administered by Transport Canada). They also expressed concern that the existing flexibility measures in the Code, including the exception for unforeseeable emergencies, were too narrow to address their concerns. Finally, employers with unionized employees expressed concern about the impact of the new provisions on the collective bargaining process, noting that the application of the new provisions would undermine industry-specific, collectively bargained rights for things such as scheduling and breaks in favour of a single codified approach.

Most employee representatives, including unions and worker and minority rights organizations, opposed exemptions, stating that the new hours of work provisions are the minimum labour standards that should be available to all employees. They maintained that the provisions play an important role in supporting employees' work-life balance and well-being and, in some cases, respond to long-standing issues. They viewed the requests made by employer representatives for exemptions as overly broad and pointed out that impacts on non-unionized employees, in particular, need to be considered. They argued that exemptions should be limited to exceptional circumstances where there are no available alternatives to enable the implementation of the new hours of work rules. They recognized that the new provisions will require operational adjustments, but asserted that it is unlikely that they will be seriously detrimental to businesses in most cases. They suggested that any significant need for exemptions or modifications will become evident over time and that actual problems should be addressed once they have manifested themselves. Employee representatives also emphasized that there should be further consultations on specific exemptions or modifications before any regulations are developed.

Feedback from the second round of consultations — Spring 2020

As a result of the feedback from the first round of consultations, a second round was held in 2020 during which feedback was sought on a regulatory proposal outlined in a discussion document circulated in advance of the meetings. A facilitated meeting was held for each of the following seven sectors: the road transportation sector, the air transportation sector, the railway transportation sector, the postal and courier sector, the broadcasting and telecommunications sector, the marine sector (pilotage, marine transportation and long-shoring), and the grain sector (handling/elevators and milling). A total of 74 employer groups and 22 labour and community organizations attended these meetings, and written submissions were received from 46 stakeholder groups.

a) Road transportation sector

The Labour Program hosted consultation sessions with stakeholders from the road transportation sector on August 1, 2019, and February 28, 2020. A total of 41 stakeholder groups participated in the sessions, and 25 groups provided written submissions.

Employer groups requested exemptions for highway and city motor vehicle operators from both the 96 hours' notice of schedules and 24 hours' notice of shift change requirements because of the operational reality of freight transportation, including unpredictable customer demand and the use of open boards to obtain last-minute shipping contracts. Many employer groups pointed to Transport Canada's existing restrictions on hours that may be worked by truck drivers (under the Commercial Vehicle Drivers Hours of Service Regulations) and questioned the pertinence of additional requirements under the Code. Key stakeholder participants included Federally Regulated Employers — Transportation and Communications (FETCO), the Private Motor Truck Council of Canada (PMTC), the Canadian Trucking Alliance (CTA), Motor Coach Canada (MCC), the City of Ottawa, la Société de transport de l'Outaouais (STO), and Teamsters Canada.

Teamsters Canada opposed any exemption to the 8-hour rest period for freight truck drivers because this provision is intended to ensure the wellness and work-life balance of employees, issues that are not part of Transport Canada's mandate. Teamsters Canada also pointed out that fatigue due to inadequate rest creates public safety as well as occupational health and safety issues, since fatigued drivers can cause accidents.

The STO and the City of Ottawa (on behalf of OC Transpo) argued there is a need for an exemption to the requirement for 30-minute breaks, as it cannot be reasonably applied to transit bus drivers. The Canadian Union of Public Employees on behalf of STO drivers, however, opposed their claims. OC Transpo subsequently found a way to adjust operations to provide a 30-minute break to transit bus drivers with the ratification, in June 2020, of a collective agreement that includes such breaks.

The CTA and some of its members indicated that exemptions from the 96 hours' and 24 hours' notice provisions were needed for dispatchers, mechanics, warehouse workers, shippers and receivers. MCC, the Bus Carriers Federation and some of their members requested exemptions from the 96 hours' and 24 hours' notice provisions for motor coach operators. These requests were all opposed by Teamsters Canada.

The Amalgamated Transport Union, Local 1624, suggested a modification to the 96 hours' notice of work schedules requirement such that it be reduced to 72 hours, but opposed an exemption to the requirement for employers to provide 24 hours' notice before a change to or addition of a work period or shift.

b) Postal and courier sector (the armoured car industry was included in these consultations)

The Labour Program held consultation sessions with stakeholders from the postal and courier sector and the armoured car industry on July 26, 2019, and March 4, 2020. A total of 22 stakeholder groups participated in the sessions, and 5 groups provided written submissions. Key stakeholder participants included Teamsters Canada, the Owner-Operator Independent Drivers Association (OOIDA), the Canadian Union of Public Employees (CUPE), Trucking Human Resources Canada (Trucking HR), Canada Post, Brink's Canada Ltd., Purolator Inc., FedEx, and Unifor.

Teamsters Canada argued that since there is less competition from independent owner-operators in the courier sector as compared with the road transportation sector, the rationale for exempting highway and city motor vehicle drivers in the road transportation sector does not apply in the postal and courier sector, which is dominated by a few large corporations. Teamsters Canada further noted that postal and courier companies are able to estimate and respond to demand much more easily than smaller trucking companies, who are often dependent on the fluctuating demands of small- and medium-sized businesses. Other participating union groups raised the point that scheduling tends to be more predictable in the postal and courier sector since, in general, shifts are assigned in advance and not as customer orders are received.

Employers in the postal and courier sector, such as Purolator, UPS and Fedex, claimed that exemptions from the 96 hours' and 24 hours' notice requirements are needed for courier drivers — including casual, part-time and full-time employees — who accept shifts that have to be assigned on short notice or who fill in for other employees when they are absent. They also argued that the new provisions conflict with existing provisions in their collective agreements.

The CTA, UPS, FedEx and Purolator also claimed that exemptions from the 96 hours' and 24 hours' notice provisions are needed for warehouse workers and employees working on air ramp operations, since their schedules require frequent adjustments due to operational needs and to remain compatible with the drivers' schedules.

c) Marine sector

The Labour Program hosted consultation sessions with stakeholders from the marine sector (including marine pilotage, marine transportation, and long-shoring) on July 29, 2019, and February 26, 2020. A total of 35 stakeholder groups participated in the sessions and 20 groups provided written submissions. Key stakeholder participants included the Atlantic Pilotage Authority (APA), the Laurentian Pilotage Authority (LPA), the British Columbia Maritime Employers Association (BCMEA), the Maritime Employers' Association (MEA), the Canadian Marine Pilots Association (CMPA), the International Longshoremen's Association (ILA), the St. Laurence Seaway Corporation, the Syndicat des débardeurs, and Unifor.

Most stakeholder submissions received from the longshore industry were from employer representatives requesting exemptions from all new hours of work provisions for longshore employees, including dispatchers, foremen and some clerical staff, and arguing that the application of these provisions would negatively impact the ability of employers to meet customer needs and respond to demand. Union stakeholders acknowledged the unique nature of longshore work, but also insisted that employees should nevertheless be afforded a better work-life balance.

Many stakeholders in the marine pilotage industry, including various pilotage authorities and the CMPA, were concerned about meeting the compulsory pilotage requirements of the Pilotage Act, as well as crew complement requirements under the Marine Personnel Regulations in their industry while complying with the new Code provisions. This was of concern to both the Marine Pilots Association and employer stakeholders. Marine pilots provide services in compulsory pilotage areas as required by the Pilotage Act. Generally, these stakeholders were supportive of proposed modifications and exemptions. In the case of marine pilots, both employer and employee representatives asserted that the requirement for a 30-minute break would cause a significant barrier to providing pilotage services as it would require that two pilots be on board a vessel in many cases, and would exponentially increase costs to customers. Additionally, as there is a shortage of marine pilots, who are highly specialized, it is unlikely that there would be adequately qualified personnel to meet an increase in demand of that nature.

Many employer stakeholders, particularly in the longshore industry (such as the BCMEA and the MEA), requested exemptions from the majority of the new provisions and took the position that the new Code provisions will undermine collective agreements.

d) Grain sector

On March 13, 2020, the Labour Program held consultations with stakeholders from the grain sector, which includes grain handling and milling. Seven stakeholder groups participated in the consultations, including the Western Grain Elevator Association, the Canadian National Millers Association, the Canadian Association of Counsel to Employers, the United Steel Workers and the Grain and General Services Union. Employer groups also provided five written submissions. The main concern in the grain milling and handling sectors related to the obligation to provide 24 hours' notice of a shift change. The Canadian National Millers Association and the Western Grain Elevator Association stated that the existing exception in the Code for unforeseeable emergencies does not provide enough flexibility since the circumstances requiring changes to scheduled shifts are foreseeable, but outside of an employer's control. While employees generally have a set schedule, changes to shifts are frequent due to railcar delays. There are no on-call or standby employees in this sector, except for maintenance employees or scarce technicians and millwrights. From their perspective, regulatory exemptions are therefore needed.

Stakeholder response to prepublication in the Canada Gazette, Part I — December 2020

The proposed regulations were prepublished in the Canada Gazette, Part I, on December 19, 2020, for a 60-day comment period. A total of 28 written submissions were received.

a) Road transportation and postal and courier sectors

The Labour Program received 10 submissions concerning the road transportation sector (including the motor coach industry) and postal and courier sector from five employer associations, three employers and two unions. Employer associations in these sectors were generally supportive of the proposed Regulations. Some unions opposed the proposed Regulations arguing that employees in these sectors should be afforded the minimum protections of the new hours of work provisions without exception or modification. The proposed exemptions and modifications in these sectors have been retained, and in some cases expanded, as employers in these sectors have very little control over the factors that impact scheduling, and operate continuously, 24 hours per day, seven days a week.

Employer associations in the motor coach industry requested exemptions to all new hours of work provisions for motor coach operators, arguing that their operational realities are identical to those of highway motor vehicle and city motor vehicle operators, and that the same exemptions should apply. Motor coach operators may be assigned shifts as customers charter trips, which often occurs with less than 24 hours' notice and cannot be predicted by the employer. Schedules may be disrupted not only by weather events, but also by changes to itineraries and pick up / arrival times that often occur only a few hours before the time of departure. It is common practice in the motor coach industry for operators to take rest periods shorter than 8 hours. This is done to meet route needs and customer demands, particularly when driving in rural and remote areas, as there is unlikely to be a relief driver. Furthermore, motor coach operators are already subject to a similar provision under the Commercial Vehicle Drivers Hours of Service Regulations, which provides that they must have an 8-hour block of off-duty time after accumulating a certain amount of driving time or on-duty time. That provision is more flexible and it allows the 8 hours to be split into two periods under certain conditions. In that it conflicts with these other regulatory requirements, the Code's 8-hour rest period provision cannot reasonably be applied to these classes of employees. Additionally, stopping to take breaks may not always be possible due to issues of safety and road conditions. Based on this rationale, exemptions to hours of work provisions were granted in the case of motor coach operators, as their application would be seriously detrimental to the operations of the industrial establishment.

An employer association requested an exemption to the 30-minute break provision for highway motor vehicle operators and city motor vehicle operators who operate a motor vehicle for the transport of mail or parcels in the postal and courier sector. They argued that, much like other vehicle operators, these drivers may not always be able to take a break if their vehicle breaks down or they are stuck in traffic. In this case, rather than an exemption, a modification has been extended to this class of employees. This will meet the employer need for flexibly while ensuring that employees still have access to meaningful breaks. Employers in this industry also requested an exemption for mechanics from the 8-hour rest period and 30-minute break provisions, since they may be required to make emergency repairs for the safety of the driver and to prevent route interruptions. In this case, no change was made, as the existing exception for emergencies in the legislation has been determined to be sufficient to address this concern.

One employer requested an exemption to the 30-minute break provision for bus operators, as implementing breaks in drivers' schedules would have a notable impact on the number of drivers needed to maintain service to customers. A union, however, supported the proposed Regulation, which did not exempt bus drivers from this provision, stating that the break would ensure work-life balance for drivers and improve their health and safety. Based on an analysis of collective agreements, such breaks are already provided to the majority of unionized employees in this class. Since the Code's provision is consistent with current industry practice and may reasonably be applied to bus operators, an exemption to the 30-minute break requirement for this class has not been granted.

One employer, in reference to employees in a courier sorting plant, requested an exemption to the 30-minute break provision for part-time workers with a consistent schedule, as the break provision would require employers to add an unpaid break to relatively short shifts. Without adjustment, if a shift is 5 hours in duration, the break provision could reduce the pay of some part-time employees (i.e. they would be paid for only four and a half hours of work). An exemption was not granted, as this issue can be addressed without causing a detrimental impact on the industrial establishment.

b) Marine sector

The Labour Program received 15 submissions concerning the marine sector, from six employer associations, four employers and five unions.

Overall, longshore industry stakeholders responded positively to the proposed Regulations. However, most employers and employer associations suggested including additional occupations in certain employee classes and requested additional exemptions and modifications. Stakeholders reiterated that without exemptions and modifications the provisions would have a significant impact on the sector and supply chain partners by delaying the departure and arrival of vessels as well as cargo loading and unloading. In the case of cargo loading and unloading, both freight trucks and rail operations are heavily dependent on the work of the longshore industry to meet their schedules.

Longshore stakeholders also pointed out that existing collective agreements are tailored to address the complex scheduling practices of this industry. Both employer and employee groups posited that supervisor positions should be treated differently regarding the 8 hours of rest provision, as this class of employees is required on site to ensure safe and efficient longshore operations. Supervisors often work “short shifts” with less than 8 hours of rest between shifts. This is established in collective agreements, and supervisors are compensated accordingly. Without an exemption for this employee class, additional supervisors would be needed, reducing the overall number of hours each supervisor can work and thereby reducing their pay and benefits. Consequently, a new class was created — “forepersons, foreperson checkers, walking bosses, head checkers, and terminal planners” — and an exemption to the 96 hours' notice, 24 hours' notice and 8-hour rest period as well as a modification to the 30-minute break were included in the Regulations in order to avoid negative impacts on employees' earning capabilities and on overall port operations.

The longshore unions' position was divided on the overall regulatory proposal, with two unions opposed to any exemptions in the sector and four unions very supportive of the approach of allowing collectively bargained scheduling to continue. In the case of supportive unions, they argued that their collective agreements were unique and offer scheduling protections that are at least as beneficial as the new hours of work provisions. They also suggested that certain employee classes should be expanded to include additional longshore occupations. As the overall response to the proposal was positive, these elements of the proposed Regulations were maintained for non-supervisory positions, with certain occupations added to employee classes.

In the marine pilotage industry, some employers requested an adjustment to the proposed modification of the 8-hour rest period provision for marine pilots who are employed in a compulsory pilotage area. They argued that the proposed modification would hinder the ability to assign multiple short assignments in a single day, which is a common industry practice. Employee stakeholders were very supportive of the regulatory approach, highlighting that marine pilotage is a specialized industry with very specific scheduling needs. In order to reflect the specialized nature of the industry and stakeholder concerns, the modification has been adjusted to require that employees be provided 8 hours of rest in a 24-hour period, with at least 6 of these hours being consecutive.

Employers in marine transportation requested that two classes of employees be combined into a single class, and that conditions that a harbour vessel be “continuously crewed” and that crew be “on board a vessel for longer than 24 hours” be removed. This would result in a single class covering employees involved in the operation of a vessel, regardless of the duration of the voyage. This adjustment is reflected in the Regulations, as the operating reality is the same all of these employees and their separation into two classes has the potential to create confusion. This new class is covered by the same exemptions and modifications that were originally proposed for employees on board vessels for longer than 24 hours.

c) Grain sector

The Labour Program received seven submissions concerning the grain sector, from three employer associations, two unions and two employees.

Most of the employer associations were satisfied with the exemptions proposed for the employee classes in this sector. These employer stakeholders suggested that some classes of employees be expanded to include additional occupations and to cover both grain handling and grain milling facilities, since there are some almost identical classes of employees working in both types of facilities. One employer stakeholder requested an exemption to the 8-hour rest period provision for millwrights, electricians, power engineers and welders who are employed in grain handling facilities. This class may be called upon to make emergency repairs to grain receiving facilities, without which certain aspects of the operation could be held up or shut down. In this case, it was determined that, in the majority of workplaces, these employees work regular and predictable scheduling. If unexpected or emergency repairs need to be made to equipment, existing exceptions in the legislation provide sufficient flexibility to ensure they can be carried out.

Unions and employees were all opposed to the proposed exemption from the requirement to provide 24 hours' notice of shift changes to classes of grain sector employees, citing the importance of work-life balance and the negative impact this exemption could have on employees' quality of life. The proposed exemptions have been retained nonetheless, with a minor expansion to include additional occupations in certain employee classes. Research and submissions demonstrate that the provision requiring 24 hours' notice of shift changes cannot be reasonably applied to all classes of employees in this sector. This sector is characterized by unpredictable demand and interconnected operations. The hours of work for the relevant classes of employees in this sector depend on variable factors, such as weather, train and vessel schedules as well as the availability of railcar spotters. Without having sufficient flexibility to replace employees with less than 24 hours' notice, employers would not be able to meet demand, or accept product, which would have negative impacts throughout the Canadian supply chain.

Modern treaty obligations and Indigenous engagement and consultation

No modern treaty impacts have been identified in relation to the Regulations. However, as on-reserve Indigenous employers and Indigenous employees may be impacted by the Regulations, Indigenous stakeholders were invited to participate in the consultation/information sessions held in summer 2019. The Labour Program received one submission from an Indigenous organization, the Ontario Federation of Indigenous Friendship Centres. This submission focused mainly on aspects of the new legislation other than the hours of work provisions.

The Labour Program received a submission from one non-profit Indigenous organization following the prepublication of the proposed regulations on December 19, 2020. This submission addressed the benefits of the new hours of work provisions, including improving work-life balance, which is of particular importance to women working in non-traditional jobs and for men who are increasingly engaged in family responsibilities. In this submission, it was argued that exemptions to the hours of work provisions would have negative impacts on Inuit women employees, and would act as barriers to entry into the workforce for Inuit women with family responsibilities, as well as potentially decreasing their participation in traditional activities on the land. The Regulations aim to restrict exemptions to only those classes of employees with respect to whom the hours of work provisions cannot reasonably be applied, in order to ensure labour standards protections continue to cover vulnerable workers as much as possible.

Instrument choice

Pursuant to section 175 of the Code, the Governor in Council has the authority to provide exemptions and modifications to the new hours of work provisions through regulations.

The Regulations are required to provide exemptions from and modifications to the new hours of work provisions. No other instrument is appropriate to provide for exemptions and modifications with respect to the Code's provisions.

Regulatory analysis

This section presents an analysis of the anticipated incremental differences between two scenarios: a baseline scenario that reflects the implementation of the hours of work provisions and the regulatory scenario in which exemptions from and modifications to the provisions are in place for certain classes of employees. The baseline scenario takes into consideration operational realities faced by employers and employees in the implementation of the new hours of work provisions, particularly in businesses that operate on a continuous, 24/7 basis. The implementation of these new provisions may have created negative impacts for continuous operations employers and the Regulations will resolve these issues and provide greater clarity and certainty for both employers and employees in federally regulated workplaces. The impacts of the Regulations on employers and employees may be limited in instances where industry practices with respect to the new provisions are currently based on the Interim Measure.

The analysis of the impacts of the Regulations is primarily based on observations and feedback conveyed by employer and employee groups throughout the regulatory process, including two rounds of stakeholder consultations, and feedback received following prepublication in the Canada Gazette, Part I. This information is supplemented by research undertaken by the Labour Program, including an analysis of labour standards as well as related provisions in collective agreements (length and frequency of break periods, advance notice of work shifts, etc.).

The impacts of the Regulations have been assessed in qualitative terms. The benefits of the Regulations — such as continued employment because of higher viability of workplaces and the ability to maintain continuity of business operations — or the cost to employees of a loss of predictability regarding breaks and rest periods are difficult to measure in quantitative terms.

Affected stakeholders

The Regulations apply to federally regulated employees and employers in the road transportation, postal and courier, marine (pilotage, marine transportation and long-shoring) and grain (handling/elevators and milling) sectors. There are approximately 232 000 federally regulated employees in these sectors, compared to a Canadian labour force of 22.9 million. The employees affected represent about 1% of the Canadian workforce.

Benefits and costs

Benefits
Benefits to employers

Lower operational costs to business

The Regulations benefit employers by addressing their need to maintain the continuity of business operations through relief from the hours of work provisions. Employers with continuous operations asserted that the new hours of work requirements impede their ability to respond to fluctuating customer demands and other conditions over which they have little control (e.g. weather, market pressures, employee absences), while also challenging their ability to remain competitive due to upward pressure on costs. The Regulations bring relief to employers from these legislative obligations in respect of their application to targeted classes of employees through exemptions or modifications in situations where these obligations would result in serious adverse effects to business operations or employees.

Benefits to employees

Employment security because of higher viability of businesses

Industrial establishments may remain operational and offer employees continued employment. Employees will benefit from the higher viability of employers, afforded by the regulatory flexibility created by the exemptions and modifications. As the Regulations reduce possible negative impacts of the legislation on employers, employees will benefit by employers not needing to institute cost-saving measures to meet new hours of work requirements that have the potential to cause a detriment to the industrial establishment.

Preserved salary and paid hours of work

The implementation of the 30-minute breaks and the 8-hour rest period provisions will require certain employers in certain industries to either reduce the length of shifts to allow a second worker to come in and/or, in the case of employees who work many short shifts, to significantly reduce the number of daily hours that they are permitted to work. As modifications address these industry-specific situations, employees will benefit from not having a reduction in hours or pay imposed and keeping the possibility of maintaining full-time employment.

Additionally, during consultations, employer stakeholders stated that they commonly rely on casual and temporary employees to fill last-minute staffing needs. They voiced concern that without modifications or exemptions there could be an increase in on-call work in order to meet the industry need for scheduling flexibility and to maintain operations. By offering flexibility to meet industry-specific scheduling needs, the Regulations mitigate the risk of employers increasing their reliance on on-call workers, preserving overall access to jobs with scheduled hours of work.

Fewer work-life balance benefits

Although employees are expected to benefit from continuity of employment and preserved hours of work, they may experience a reduction in the work-life balance benefits associated with the Code's new hours of work provisions. Exemptions contained in the Regulations for both the 24 hours' notice of shift change and the 96 hours' notice of schedule will decrease scheduling certainty for employees. Affected employees will have to be more flexible in managing unpredictable scheduling changes. In the case of modifications to break and rest provisions, affected employees will also have less certainty about when breaks can be taken, as modifications allow for the postponement of breaks to another time during the shift or work period. As the Regulations create exemptions and modifications to the Code's hours of work provisions for certain classes of employees, employees in those classes will not receive the full benefit of increased predictability of scheduling and improved work-life balance associated with these provisions.

Costs

The costs of the Regulations, which are expected to be minimal and have not been monetized, include costs associated with adapting behaviour to new scheduling practices and costs to the Government of Canada to communicate the regulatory changes.

Costs to employers

Human resources scheduling costs

Minor costs might be associated with adjusting business operations as they relate to human resources and systems management to develop employee schedules based on the Regulations and to adapt breaks and rest periods accordingly. These costs are anticipated to be negligible, with implementation using well-established existing administrative and human resources procedures, with no anticipated increase in the number of work hours or the number of employees for employers to maintain existing operations.

Costs to the Government of Canada

Communications

Costs associated with communication activities and the development of operational guidance documents by the Government of Canada are estimated to be approximately $20,000, which will be assumed entirely in the first year following the coming into force of the Regulations.

Small business lens

The Regulations will create exemptions from and/or modifications to the current legislation. They will provide relief to small businesses by creating exemptions and modification that address industry-specific scheduling needs and operational realities respecting shifts, breaks and rest periods. Without these exemptions and modifications, certain business operations would face significant negative effects; in some cases, this would result in negative impacts on working conditions for employees. Any costs associated with the Regulations are expected to be minimal. It is therefore expected that small businesses will generally benefit from the Regulations.

One-for-one rule

The one-for-one rule does not apply, as the Regulations will not impose new administrative burden costs.

It should be noted that new record-keeping requirements supporting compliance and enforcement of the hours of work requirements that came into effect on September 1, 2019, were included in amendments to subsection 24(2) of the Canada Labour Standards Regulations published in the Canada Gazette, Part II, on June 12, 2019.

Regulatory cooperation and alignment

Transport Canada is responsible for various industry-specific regulations that stipulate hours of service rules for drivers of commercial vehicles, marine personnel and marine pilots. Whereas Transport Canada rules and regulations are generally aimed at ensuring public safety, hours of work provisions under the Code are intended to ensure employee well-being and work-life balance. Employers must comply with both the Code and Transport Canada rules and regulations. The Labour Program has consulted Transport Canada officials responsible for the road transportation, postal and courier, and marine sectors throughout the development of the Regulations. The Regulations will resolve minor misalignments identified between requirements under the Code and regulations administered by Transport Canada.

The first misalignment concerns the Code requirement for employers to provide an 8-hour rest period between shifts or work periods and requirements under the Commercial Vehicle Drivers Hours of Service Regulations pertaining to cycles of work and on-duty/off-duty time for motor vehicle operators. Under the latter, once a driver has accumulated a certain amount of driving time or on-duty time, the driver must have at least 8 consecutive hours of off-duty time before driving again. However, if the driver's vehicle has a sleeper berth, this 8-hour block can be split into no more than two periods with certain restrictions. As there is already a provision covering freight truck drivers under Transport Canada regulations, the Regulations will exempt highway motor vehicle and city motor vehicle drivers operating a motor vehicle with a gross combination weight rating over 4 500 kg from the 8-hour rest provision.

The second misalignment concerns the 8-hour rest period requirement under the Code and requirements related to safe manning under the Marine Personnel Regulations administered by Transport Canada. The Marine Personnel Regulations require that employees with specific certifications must be available to operate a vessel safely. Requiring employers to offer 8 hours of rest between each shift, without modification, could make it difficult to ensure certified employees are available to meet these safe manning requirements. The Regulations therefore provide for a modification that ensures the harmonization of the Code with the requirements of the Marine Personnel Regulations. In the case of the Pilotage Act, there are legal requirements for vessels to employ a marine pilot in compulsory pilotage areas. As marine pilots are generally deployed alone, inflexibility concerning breaks and rest periods would make it difficult to ensure that vessels meet pilotage requirements at all times.

Lastly, government officials from Agriculture and Agri-Food Canada were consulted on the operational realities of the grain sector in view of the exemptions applicable to this sector.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus (GBA+)

The policy goal of the legislative provisions is to improve work-life balance, which is of particular importance to women working in non-traditional jobs, immigrants who are more commonly working in part-time or temporary work, and men who are becoming increasingly more engaged in family responsibilities. As the Regulations provide exemptions and modifications to the legislation, they have the potential to have a larger impact on those groups. While many groups are likely to be impacted by measures affecting work-life balance, data is currently only available relating to gender. The 2015 Federal Jurisdiction Workplace Survey shows that employees working in the road transportation, postal and courier, marine and grain sectors are predominately male, as has traditionally been the case throughout the history of these industries. For this reason, the Regulations will proportionally have more of an impact on men.

As previously discussed in this document, the Regulations are expected to result in two key benefits for employees:

  • employment security, as workplaces will have the flexibility to meet industry needs and remain competitive; and
  • preservation of key elements of the new hours of work provisions while maintaining levels of pay and hours of work for employees that would otherwise have been decreased or lost due to inflexibility in scheduling.

As the industries where these benefits are expected to apply are made up of predominantly male employees, this will have a higher positive impact on men. Women will also experience a positive impact, albeit of a lower proportion.

The Regulations are expected to decrease benefits to employees in two ways:

  • decreased work-life balance; and
  • decreased certainty about breaks, rest periods and schedules for classes of employees for which a modification or exemption has been created.

The decreased benefits will have a proportionally higher impact on the men in the workforce, but individually this will have a higher impact on women. A recent Statistics Canada publication showed that women still manage the majority of household duties, regardless of whether or not they work outside the home. footnote 2 The inability to balance work and family duties acts as a barrier to women entering certain workplaces. Women who are not able to pursue careers in male dominated workplaces are economically disadvantaged, since these jobs typically offer better remuneration than those requiring similar skills in other workplaces. Labour standards that foster more reliable work schedules may allow more women to enter non-traditional workplaces.

Rationale

Road transportation and postal and courier sectors

In these sectors, relevant employee classes' scheduling is largely dependent on unpredictable factors such as customer orders, traffic and weather conditions, and mechanical failures that the employer cannot reasonably be expected to predict within sufficient time to apply the new provisions. These factors affect not only those operating motor vehicles but also support staff, such as mechanics, dispatchers and warehouse workers. Along with the unpredictable nature of the work, these sectors are already subject to the Commercial Vehicle Drivers Hours of Service Regulations administered by Transport Canada. These regulations regulate duty times and rest periods, and are primarily concerned with public safety. Employers require the flexibility to assign work in accordance with demand and employee availability, and in a way that allows them to remain compliant with other regulatory frameworks.

Breaks and rest periods can also pose a significant problem in terms of the flexibility needed in continuous 24/7 operations. For drivers, taking a break or rest period first requires parking their vehicle safely. However, unpredictable factors, such as traffic and weather conditions, may prevent a driver from stopping their vehicle when planned. Additionally, motor vehicle operators and motor coach operators are very limited as to where they can park, especially when they are on the highway, where they can only stop at designated truck stops.

Due to the unpredictable nature of work in these sectors, limitations around the ability to take breaks and rest periods at specific times or places, and the limited control employers have over demand and mechanical issues, flexibility in terms of scheduling, breaks and rest periods is needed to ensure that businesses can operate continuously, safely and efficiently. The exemptions and modifications included in the Regulations are reflective of these sectoral realities.

Marine sector

The marine sector can be subdivided into three key areas: marine transportation, marine pilotage and long-shoring.

Hours of work in marine transportation are influenced by many factors outside of the employer's control such as demand, weather, mechanical issues, and regulatory frameworks. Most employers in marine transportation are subject to the Marine Personnel Regulations administered by Transport Canada. These regulations impose requirements and procedures (e.g. the number of people on watch, which types of certifications employees must possess for certain activities, the number of employees who must be on the ship) to ensure safety, which is the primary priority of vessel operations. Without exemption or modification, the new hours of work provisions do not offer the level of flexibility required to adjust staffing numbers to comply with safety requirements and/or customer demand in the event of unexpected changes in personnel (including as a result of injury or illness), mandatory rest, unexpected mechanical issues and increased crewing requirements for operations during inclement weather. The Regulations address unpredictability within the industry, while ensuring that employees benefit from the new hours of work rules where possible. Without the flexibility created by the Regulations, the industry would not be able to meet customer demand in a safe and efficient manner.

In the marine pilotage industry, marine pilots as well as support occupations perform a critical role for the Canadian marine sector: providing pilotage services in compulsory pilotage areas, where all vessels must employ a licensed pilot provided by the applicable pilotage authority. Although the timing and frequency of vessel requests for marine pilot services are unpredictable, all requests must nonetheless be met by the pilotage authorities as a matter of law. In addition to pilots, employees who operate pilot boats, transporting pilots to and from vessels, must also be available at all times to meet demand. For this reason, this industry requires a high degree of flexibility when it comes to scheduling, breaks and rest periods. Furthermore, pilotage is a high-cost service and is carried out on a cost-recovery basis. Without modification or exemption, pilotage authorities would have to assign multiple pilots to each vessel in order to allow for breaks and rest periods during work assignments, increasing overall costs to customers. The modifications included in the Regulations for this industry will allow pilotage authorities to meet their statutory responsibilities, while keeping costs reasonable for customers and supporting the overall Canadian marine sector.

The longshore industry is unique in that a significant number of employees work for multiple employers and/or under strict rules that dictate how work is assigned. As a result, individual employers generally have little control over employee scheduling as well as hiring and staff availability. To address this industrial reality, scheduling practices have been established through decades' long collective bargaining processes, which are of mutual benefit to employers and employees. For a significant number of workplaces in this industry, scheduling arrangements are addressed in collective agreements and are based on either a union hall model or a hybrid of shifts and dispatched assignments. In certain scheduling arrangements, employees choose their availability for shifts, and make decisions around their own personal and family needs. In these cases, the job is often described as already being flexible, permitting employees to engage in care of family and other pursuits. In situations where employees do not choose their shifts, scheduling is governed by collectively bargained agreements.

Longshore work is continuous (24/7) and unpredictable. Customer demand changes day-to-day and hour-by-hour, affecting staffing needs. Weather, mechanical breakdown, and cargo type also affect staffing needs, and are entirely outside of the employer's control. Due to the highly unique collective bargaining and scheduling system, as well as the unpredictable nature of the work, implementation of the new provisions without modification or exemption would not only prove seriously detrimental to the operation of the industrial establishment, but would also have a negative impact on employees. The flexibility created by the Regulations will help maintain industry operations, as well as decades' long collective bargaining processes, which have created mutual benefits for employers and employees.

Grain sector

This sector is characterized by unpredictable demand, and operations interconnected with rail and road transportation as well as shipping. The hours of work for the relevant classes of employees in this sector depend on unpredictable factors, such as weather, train, freight truck and vessel schedules, which often change with little or no notice to the employer, as well as the availability of railcar spotters. Employees in relevant classes often depend heavily on the duties and activities of other sectors, making operations with reduced or incomplete staffing virtually impossible. Furthermore, elevators are often located in remote areas, where labour shortages result in a limited number of employees who are qualified and certified to perform grain handling and milling tasks. While employees usually have a schedule for performing regular duties, they need to be available on short notice to repair equipment breakdowns, deal with last-minute shipments, and replace other critical employees in the case of injury or illness. Without flexibility to replace employees with less than 24 hours' notice, employers would not be able to meet demand, or accept product, which would have negative impacts throughout the Canadian supply chain. The exemption in the Regulations to the 24 hours' notice of shift change provision addresses the need for flexibility while also ensuring that as many employees in this sector as possible are entitled to the new hours of work protections.

Implementation, compliance and enforcement, and service standards

Implementation

The classes of employees to whom the exemptions or modifications will apply is readily identifiable on the basis of occupational class in order to prevent confusion and misapplication.

Outreach and education activities were completed to inform employers and employees of new hours of work provisions and other recent changes to federal labour standards. Also, the Labour Program published several Interpretations, Policies and Guidelines (IPGs) to support employers and employees in understanding the new hours of work provisions of the Code. When the Regulations come into force, additional outreach and education activities will be carried out, as well as additional IPGs developed as needed, to ensure that stakeholders understand their rights and responsibilities under the new regulatory framework.

Compliance and enforcement

Compliance with the Code's hours of work provisions, as modified by the Regulations, will be achieved using a variety of approaches along a compliance continuum. This may include educating and counselling employers on their obligations, seeking an assurance of voluntary compliance from the employer, or issuing a compliance order to cease the contravention and take steps to prevent its reoccurrence. To address more serious or repeated violations, an administrative monetary penalty (AMP) under the new Part IV of the Code may be issued. To learn more about how AMPs may be issued, please consult the IPG, Administrative Monetary Penalties - Canada Labour Code, Part IV - IPG-106.

Coming into force

The Regulations will come into force February 1, 2022, to allow stakeholders ample time to adjust workplace policies, practices and HR systems and prepare for implementation. When the Regulations come into force, the Interim Measures will be adjusted to reflect the current framework for those sectors not covered by the Regulations.

Contact

Danijela Hong
Director
Labour Standards and Wage Earner Protection Program
Employment and Social Development Canada — Labour Program
Place du Portage, Phase II, 10th Floor
165 de l'Hôtel-de-Ville Street
Gatineau, Quebec
K1A 0J9
Email: EDSC.DMT.ConsultationNTModernes-ConsultationModernLS.WD.ESDC@labour-travail.gc.ca