Canada Labour Code Part III Module One Hours of Work, Minimum Wage, Vacation and General Holiday, Pay Administration, Genetic Testing, Sexual Harassment, Compliance Approach and Wage Recovery

Federal Jurisdiction Shipping and Shipping Services Telecommunications Railways Interprovincial and International Road Transportation Air Transportation Ferries, tunnels and bridges Radio and television broadcasting Telecommunications Chartered Banks Crown Corporations First Nations Pipelines Canals Banks Other Telecommunications include: telephone, telegraph, cable systems, mobile phone service, and Internet service providers (ISP); radio and television broadcasting, including satellite and cablevision; air transport, aircraft operations, and aerodromes; some First Nations communities and activities; Other includes: undertakings for the protection and preservation of fisheries as a natural resource; undertakings declared by Parliament to be for the general advantage of Canada, such as: ◦most grain elevators; ◦flour and seed mills, feed warehouses, and grain-seed cleaning plants; and ◦uranium mining and processing, and atomic energy. Most federal Crown corporations, such as the Canada Mortgage and Housing Corporation and the Canada Post Corporation, are also covered by the Code’s labour standards. Federal public service employees are not covered. The Constitution Act 1867 to 1982 distributes law making functions to both federal and provincial levels of government. It assigns to federal Parliament jurisdiction over subjects of general or national interest, while enabling provinces to deal with issues considered to be of a local nature. We know that federal or provincial jurisdiction is a constitutional matter and therefore, really a matter for tribunals and courts to decide. Our role is to decide jurisdiction only to the extent of deciding whether we can apply the Code. Distribution of Legislative Powers is set out in sections 91 and 92 of the Constitution Act In s. 91 & 92, the Constitution sets out what comes under Federal control and what comes under Provincial control, or jurisdiction. Formerly the British North America Act Formerly known as the British North America Act (BNA Act), distributed the law-making functions to both levels of government. The BNA Act assigned jurisdiction over subjects of general or national interest to the federal Parliament Section 91 of the Constitution Act 1867 authorizes Parliament to legislate "laws for the peace, order and good government of Canada" in all matters that do not come under the exclusive preserve of the provinces.

Canada Labour Code – Part III The primary objective of Part III of the Canada Labour Code is to establish and protect workers’ rights to fair and equitable conditions of employment. Only applies when an employee/employer relationship exists. Makes no distinction between part-time, full-time, seasonal, permanent or casual employment, and protects temporary foreign workers. Applies notwithstanding any other law, custom, contract or arrangement. Conditions of Employment The Code sets the minimum standards of employment. Employers are permitted to offer terms and conditions of employment that exceed what the Code requires. Employer – Employee Relationship In order to be covered by the Code, an employer-employee relationship must exist. Independent contractors may not be considered employees. An investigation by a Labour Program inspector may be required to establish if an employer-employee relationship exists to determine if the provisions of the Code apply. Full-time, Part-time, and Casual Employees The Code makes no distinction between full-time, part-time or casual employees. All are covered by the Code’s labour standards if the employees meet the qualifying requirements. Temporary Foreign Workers Temporary Foreign Workers employed by federally regulated employers are protected by and have full entitlements provided under the provisions of Part III of the Canada Labour Code.

Minimum Age - Employment under 17 Employers can employ persons under the age of 17 as long as: Work not likely to endanger safety or health. Work is not underground, in a mine or where otherwise prohibited by law. Employee is not required by provincial law to attend school. Employee does not work between 11:00 p.m. and 6:00 a.m.

Hours of Work – Excluded Professions Architectural Dental Engineering Legal Medical Managers, superintendents or those who exercise management functions

Hours of Work – General Standard Hours: 8 in a day and 40 in a week Overtime Pay: not less than one and one-half times the regular rate of pay Maximum hours: 48 per week Maximum hours may be exceeded with Ministerial permit or due to an emergency; and Averaging and modified schedules provide for weekly flexibility. Time-off in lieu of paid overtime arrangements – The Labour Program’s position is that time off in lieu of pay for overtime hours is allowed as long as the parties agree and is provided at time plus half (1.5) Where an averaging plan or modified work schedule is in place, the maximum hours of work continue to be 48 hours per week. Where an averaging plan or modified work schedule is in place, the maximum hours may exceed 48 hours per week, but may not exceed the average of 48 hours over the period of the schedule (i.e. two or more weeks). Additional information on averaging plans and modified schedules is explained on slide 11 Commissioned employees in Radio Broadcasting and Banking Industries 1) Employees working as commission-paid salespeople who are employed in the banking industry are exempt from the application of sections : 169 – standard hours of work; 171 – maximum hours of work; and 174 – overtime pay. 2) Employees working as commission-paid salespeople who are employed in the radio and television broadcasting industry are exempt from the application of sections: 171 – maximum hours of work; 173 – scheduling of hours of work; and

Hours of Work – Modified Schedules Where no collective agreement: Subject to approval by at least 70% of affected employees Notice (Schedule III) must be posted for at least 30 days before modification takes effect. Includes compressed work weeks and flexible hours of work Two types of modified schedules: Section 170 – gives employers flexibility over standard hours of work (e.g. 8 hours/day, 40 hours/week) … With this modified schedule, the employer may schedule more than 8 hours / day without having to pay overtime rates. If the modified schedule is spread over two or more weeks, the total hours scheduled must average 40 or less or overtime rates will apply. Section 172: gives employer same flexibility over standard hours, but also provides flexibility over maximum hours of work. In the case of these modified schedules, the average hours scheduled over the duration of the schedule must be 48 hours or less. Modified Schedule: Notice – Schedule III Any changes to modified schedule subject to same requirements. 70% approval rate is required where employees are not covered by a collective agreement If covered by a collective agreement do not need to post Schedule III or obtain 70% approval

Minimum Wage – General Entitlement The Code adopts the provincial minimum hourly wage - regardless of occupation or age Special provisions for Apprentices and Trainees Adjustments can be made if room and board are provided Apprenticeship program must be registered Special provisions under the Canada Labour Standards Regulations apply to employees who are being trained as apprentices in accordance with the provincial apprentice acts. Those enrolled in an apprenticeship program will be paid in accordance with the schedule of rates established under the applicable provincial act. Labour Program Internet site lists all minimum wage rates (Minimum Wage Database) at: http://srv116.services.gc.ca/dimt-wid/sm-mw/rpt1.aspx?lang=eng

Minimum Wage – Reporting Pay Employee reports to work at the call of employer Unscheduled Employee must be paid wages for not less than the equivalent of three hours’ wages Applies whether or not employee is asked to do any work after so reporting Discuss IPG-048 – Reporting Pay The purpose of reporting pay is to ensure that all employees who are called in to work, where there are no regularly scheduled hours or outside their regularly scheduled working hours, receive equitable compensation for the out-of-pocket expenses and other costs incurred by having to report to work. "Reporting for work" includes : being called back to work after the employee has left the workplace following the completion of regularly scheduled hours, being called in outside regularly scheduled hours (i.e., days off, vacations, public holidays), and being called in to work when there are no regularly scheduled working hours. The fact that an employee is "on call" or on "stand-by" outside regular working hours is not enough to trigger the reporting pay provision. However, when calculating the entitlement, one must be aware of the principle that an employee must have been away from the work place and then reported to the work place in order to receive reporting pay. An employee reporting to work shall be paid for a minimum of three hours of work, regardless of whether or not the employee performs any work after reporting to the work place. Thus, if the employee performs no work, or works for less than three hours, he must still receive three hours pay at the regular rate of wages; however, if the employee works for more than three hours, then he will be paid for each and every hour worked.

Annual Vacation – General Entitlement Two entitlements – vacation leave and vacation pay After one year of service: Two weeks vacation leave with 4% of wages as vacation pay. After six years of service: Three weeks vacation leave with 6% of wages as vacation pay. Section 183 of the Code defines the year of employment as: “the period of 12 consecutive months beginning with the date the employment began, etc. unless the employer sets a different year of employment. The Canada Labour Standards Regulations provide how the employer may set a year of employment. Provisions exist also for employers who use a standard year of employment (fiscal year).

Vacation Leave – General Provisions Vacation must be granted not later than 10 months after completion of the year entitling the employee to the vacation. Waivers: Employee may request to waive or postpone right to vacation time, in writing; Still entitled to receive vacation pay

Vacation Pay Vacation pay is payable on wages. Must be paid within 30 days of termination of employment. Wages - Regular wages; - Overtime pay; -General holiday pay; - Bereavement leave pay; - Some leaves; and - Vacation pay. Exclusions - Pay in lieu of notice (termination pay); - Severance pay; and - Unjust dismissal settlements. Vacation pay is normally paid to the employee within 14 days prior to the commencement of a vacation. However, vacation pay may be paid during or immediately following vacation, if that is the established practice in the employee's workplace. Bonuses: If an employee is entitled to a bonus/allowance as per their employment contract (e.g. commission on sales, northern allowances, safety and/or production bonuses), these are considered wages for the purpose of calculating vacation pay. For more information on the calculation of vacation pay, please consult IPG 805-1-IPG-012 – Vacation Pay.

General Holidays The Code provides for nine general holidays: New Year’s Day Good Friday Victoria Day Canada Day Labour Day Thanksgiving Day Remembrance Day Christmas Day Boxing Day

General Holiday with Pay - Eligibility 30 Days of Employment Other than the 30-day employment requirement, employees do not need to work a specific number of hours or shifts preceding the holiday in order to qualify for holiday pay. Part-time employees have the same entitlement to a paid holiday as full-time employees; their holiday pay is proportional to the number of hours they work.

Required to Work on a General Holiday Majority of Employees holiday pay for that day, and paid at a rate equal to at least one and one-half times their regular rate of wages for the time worked on that day Managers and Professionals normal rate of pay, and be given a holiday with pay at another time

Holiday Pay – Not Required to Work Equal to at least one twentieth (1/20th) of the wages, excluding overtime pay that they earned in the four-week period immediately before the week in which the general holiday occurs. Common Formula Applies to employees who are paid on commission (in whole or in part) 12 weeks continuous employment: will be paid holiday pay equal to at least one sixtieth (1/60th) of the wages, excluding overtime pay, that they earned in the 12-week period immediately before the week in which the general holiday occurs. Less than 12 weeks continuous employment: use the common formula Commissioned-based Formula Longshoring Industry It is common for employees working in the longshoring industry to work for several different employers (an employer’s association or multi-employer unit) during a pay period.  Holiday pay for these employees is equal to at least one twentieth (1/20th) of the total number of hours worked, excluding overtime hours, during the four-week period before the week in which the holiday occurs multiplied by the employee’s basic rate of wages. In the longshoring industry, there is an exception for situations where an employee works for an employer’s association and also performs work for another employer who is not a member of the association.  In lieu of general holidays, that other employer must pay the employee, on each pay day, an amount equal to 3.5% of their basic rate of wages times the number of hours worked for that pay period.

Payment of Wages Employers must establish pay days at least once every 30 days and pay employees on these pay days. Employees are entitled to receive any other amounts to which they are entitled within 30 days from the time when the entitlement arose. On termination of employment, employees are entitled to be paid: any vacation pay then owing by the employer to the employee under this Division in respect of any prior completed year of employment; and (b) four per cent or, if the employee has completed six consecutive years of employment by one employer, six per cent of the wages of the employee during any part of the completed portion of their year of employment in respect of which vacation pay has not been paid to the employee.

Administration and General – Deductions from Pay An employer cannot make deductions, except as permitted under the Code. Permitted deductions are: deductions required by federal or provincial law (i.e. taxes, CPP and EI), deductions authorized by a court order such as child support garnishment or by a collective agreement such as union dues, specific amounts authorized in writing by the employee, overpayments of wages. The department’s position is that employers may not deduct amounts that they feel they are owed without the employee’s written authorization, signed at the time the deduction is made. Discuss: IPG-60 - Deductions from wages or other amounts due to an employee Paragraph 254.1(2)(c), "amounts authorized in writing by the employee", requires a written authorization by the employee agreeing to the deduction of a specific amount. For every deduction made, the authorization must be in writing, specify a particular sum, and be given in a way that is truly consensual. Discuss: Blanket Authorities 254.1 (1) No employer shall make deductions from wages or other amounts due to an employee, except as permitted by or under this section. Permitted deductions (2) The permitted deductions are (a) those required by a federal or provincial Act or regulations made thereunder; (b) those authorized by a court order or a collective agreement or other document signed by a trade union on behalf of the employee; (c) amounts authorized in writing by the employee; (d) overpayments of wages by the employer; and (e) other amounts prescribed by regulation.

Administration and General – Deductions from Pay (cont’d) No employer shall make a deduction in respect of damage to property, or loss of money or property, if any person other than the employee had access to the property or money in question. Garnishment An employee cannot be dismissed, suspended, disciplined, laid off or demoted because garnishment proceedings may be or have been taken against them. Damage or loss (3) Notwithstanding paragraph (2)(c), no employer shall, pursuant to that paragraph, make a deduction in respect of damage to property, or loss of money or property, if any person other than the employee had access to the property or money in question. It should be noted that the Canada Labour Code only concerns the issue of when an employer may make a deduction from wages or other amounts; the Code it does not seek to regulate the items or costs for which an employee may be held responsible.

Pay Statement Employer is required to furnish the employee with a statement in writing setting out: the period for which a payment is made; the number of hours for which the payment is made; the rate of wages; details of the deductions made from the wages actual sum being received by the employee. Electronic pay statements In order to satisfy the requirement that a pay statement shall be in writing, an electronic document must satisfy the following conditions: (a) the document must be provided to the employee by making it available only to the employee through an electronic source, such as a web site, that is accessible to the employee and whose location is made known to the employee; (b) for a period of at least three years from the day on which the document is first provided to the employee, the document must be readable and printable on a computer and printer to which the employer shall provide. Reference: http://laws-lois.justice.gc.ca/PDF/SOR-2008-115.pdf

Record Keeping Employers are required to keep a record of the employee’s dates of employment (i.e. start and end dates) for at least 36 months after the date of termination of employment. Other payroll records, including rates and frequency of remuneration of wages (e.g. hourly, weekly, etc.), must be kept for at least three years after the employee performs the work. An outline of the Code requirements must be posted in the work place. (Schedule II). Review Regulation 24(2) Other employee information that must be kept for at least three years after the work is performed include: The employee’s name Address Social Insurance Number Occupational classification Sex Age (if employee is under the age of 17 years) If the employee is paid on a basis other than time or a combination of methods, the employer must also keep records on the hours worked each day (exclusions exist e.g. management employees, professionals, etc.) Actual earnings – amounts paid each pay day, including breakdown of amounts paid for overtime, vacation pay, general holiday pay, bereavement leave pay, termination pay and severance pay. Payments made each pay day after deductions, including details of deductions made. Details of other record keeping requirements can be found in Regulation 24 and in the labour standards pamphlet #14 – Keeping of Records. Furnishing of Records: Employers must furnish records related to employees’: Wages Hours of work General holidays Annual vacations Conditions of work

Compliance Approach Promote, counsel and educate Investigation of complaints – monetary and non-monetary Inspect records Labour standards’ enforcement activities follow a compliance continuum, ranging from education and raising awareness to prosecutions and fines.   These activities (proactive and reactive), performed by Labour Program inspectors, support compliance with the Code. The proactive activities (e.g., education, counselling and inspections) aim to educate all workplaces and to protect vulnerable workers. The reactive activities (e.g., investigations) are complaint driven. There are monetary complaints for wages, vacation pay and general holiday as well as non-monetary complaints for hours of work, pay statements and potential leave violations.

Complaints Handling Complaint must be made, in writing, within 6 months of the day the employee should have normally been paid (Monetary) or the day that the subject matter of the complaint arose (Non-Monetary) Inspectors’ powers expanded to include the ability to reject a complaint under specific circumstances. There are eight grounds by which an inspector can reject a complaint, in whole or in part, pursuant to s. 251.05: The complaint was not within their jurisdiction. The complaint is frivolous, vexatious or not made in good faith. The complaint was settled. There are other means available to resolve the subject matter of the compliant that should be pursued. The subject matter of the complaint has been dealt with through other legal recourse. In a non-monetary complaint, there is insufficient evidence to substantiate the complaint. The subject matter of the complaint is covered by a collective agreement and there is recourse available to the complainant. Following the suspension of the complaint, it is determined that required actions were not taken by the complainant within the specified time period.

Investigating a Complaint An employer may be requested to provide the inspector with certain types of documentation to assist in the investigation of the complaint. Inspector will make a determination whether any entitlements are owing. Parties will be informed and will be afforded an opportunity to provide any additional information. If entitlements are determined as owing, the employer will be afforded opportunity to voluntarily comply. If voluntary compliance cannot be achieved, the inspector will escalate the investigation to achieve compliance through enforcement, up to and including prosecution. Certain types of documents include documents related to the employees’: Wages Hours of work General holidays Annual vacations Conditions of work Assurance of Voluntary Compliance (AVC) is an employer's voluntary written commitment to a labour standards inspector that a monetary or non-monetary violation of the Code will be corrected within a specified period of time.