Canada Gazette, Part I, Volume 154, Number 51: Exemptions from and Modifications to Hours of Work Provisions Regulations

December 19, 2020

Statutory authority
Canada Labour Code

Sponsoring department
Department of Employment and Social Development

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 96 hours’ written notice of their work schedules, 24 hours’ written notice of shift changes or additions, a 30-minute unpaid break 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 (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 road transportation, postal and courier, marine, and grain sectors is of a 24/7 continuous nature and is such that the flexibility in the proposed Exemptions from and Modifications to Hours of Work Provisions Regulations (the proposed 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 below.

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, without reprisal, 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 (but not the public service) 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.

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, subject to 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. Further, the requirement to provide 96 hours’ notice of work schedules does not apply to employees subject to a collective agreement that specifies an alternate notice period or specifies that this provision does not apply.

The new hours of work provisions are also all subject to an exception for unforeseeable emergencies, which is prescribed under 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 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 was not designed to deny employees their right to file a complaint. The Labour Program would investigate any complaint related to one or more hours of work provisions according to the existing complaint handling policy. Subsequently, an Assurance of Voluntary Compliance (AVC) may be issued and Labour Program officials would work with the employer to provide education and support 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 clarifies 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 sector, marine (pilotage, marine transportation and long-shoring), and grain (grain handling/elevators, and milling) sectors.

The pandemic prevented stakeholders in other sectors, including aviation, telecommunications, broadcasting, banking and rail transportation from making submissions following the second round of consultations held in February and March 2020. As a result, regulatory development will resume once these stakeholders indicate they are ready to re-engage. In the meantime, the Interim Measure will continue to apply in specified sectors.

Objective

The primary objective of this regulatory proposal 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 to provide employees with work-life balance and more predictability in relation to their hours of work.

Description

The proposed Regulations would 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 proposed Regulations are summarized in the tables below.

Table 2.1: Employee classes — Road transportation and postal and courier sector
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 a2 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
Motor coach operators who are not employed by a municipal or provincial transit authority		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 a2 note(s) Table a2 note a E: An exemption is proposed for the class of employees considered. Return to table a2 note a referrer

Table 2.2: 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 a3 note a}
Marine pilots who are employed in a compulsory pilotage area			M2^{table a3 note b}	E^{table a3 note c}
Launch masters, pilot boat captains, marine engineers and deckhands employed in marine pilotage services			M1^{table a3 note d}	M3
Employees engaged in the operation of a continuously crewed harbour vessel		E	M1	M3
Masters, deck officers, engineering officers, radio operators, electrotechnical officers, and ratings employed on board a vessel for longer than 24 consecutive hours	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, forepersons, tower loader operators, wharfpersons, tanker loaders, machinery operators, stowers and mechanics	E	E	M2	M3
Table a3 note(s) Table a3 note a M3: A modification to the 30-minute break is proposed to provide employees with a 30-minute break for every period of 5 consecutive hours of work and allow it to be split into periods of at least 15 minutes and taken at any time during the work period or shift. Return to table a3 note a referrer Table a3 note b M2: A modification to the 8-hour rest between work periods or shifts is proposed to provide employees with a rest period of a minimum of 8 consecutive hours within each 24-hour period in which they have a work period or shift. It also includes a modification to allow the unforeseeable emergency exceptions under subsection 169.2(2) of the Code to continue to apply to classes of employees for which this modification applies. Return to table a3 note b referrer Table a3 note c E: An exemption is proposed for the class of employees considered. Return to table a3 note c referrer Table a3 note d M1: A modification to the 8-hour rest between work periods or shifts is proposed to provide employees with a rest period of a minimum of 8 hours, with at least 6 of those hours consecutive, within each 24-hour period in which they work a work period or shift. It also includes a modification to allow the unforeseeable emergency exceptions under subsection 169.2(2) of the Code to continue to apply to classes of employees for which this modification applies. Return to table a3 note d referrer

Table 2.3: 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 a4 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 facilities		E
Laboratory technicians who are employed in grain handling facilities		E
Employees who are involved in the grading, quality assurance and inspection of grain who are employed in grain handling facilities		E
Millers and assistant millers who are employed in grain milling facilities		E
Grain cleaning operators who are employed in grain milling facilities		E
Table a4 note(s) Table a4 note a E: An exemption is proposed for the class of employees considered. Return to table a4 note a referrer

Regulatory development

Consultation

Initial feedback from the first round of consultations — Summer 2019

Six industry-specific technical meetings — broadcasting and telecommunications, air transportation, rail transportation, postal and courier, road transportation and marine sector (pilotage, marine transportation and long-shoring) — were held with a total of 68 employer groups and 25 labour and community organizations. Written submissions were received from approximately 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, their ability to respond to fluctuating customer demands and other conditions over which they have little or no control (e.g. weather, market pressures, employee absences). They raised concerns 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, are 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 concerns. 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 in cases where no alternatives are available enabling 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, a second round of consultations was held in 2020 during which feedback was sought on a regulatory proposal outlined in a discussion document circulated in advance of the meetings. Seven facilitated meetings dealing with specific sectors — road transportation, air transportation, railway transportation, postal and courier, broadcasting and telecommunications, marine (pilotage, marine transportation and long-shoring) and grain (grain handling/elevators and milling) — were held with a total of 74 employer groups and 22 labour and community organizations in attendance. Submissions were received from approximately 45 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. Forty-one stakeholder groups participated in the consultation 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, the 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 Société de transport de l’Outaouais (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 30-minute breaks.

The Canadian Trucking Alliance (CTA) and some of its members indicated that exemptions from the 96 hours’ and 24 hours’ notice provisions are needed for dispatchers, mechanics, warehouse workers, shippers and receivers. Motor Coach Canada, 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 this consultation meeting)

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. Twenty-two stakeholder groups participated in the consultation sessions, and five 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, Brinks 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. Thirty-five stakeholder groups participated in the consultations and 20 groups provided written submissions. Key stakeholder participants included the Atlantic Pilotage Authority (APA), the Laurentian Pilotage Authority (LPA), the British Columbia Maritime Employer Association (BCMEA), the Maritime Employers Association (MEA), the Canadian Marine Pilots’ Association (CMPA), the International Longshoremen’s Association (ILA), the St. Lawrence Seaway Management Corporation, the Longshoremen’s Union 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 have 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 clients. Additionally, as there is a shortage of marine pilots who are highly specialized, it is unlikely that there would be adequate 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

The Labour Program held consultations with stakeholders from the grain sector, which includes grain handling and milling, on March 13, 2020. Seven stakeholder groups participated, including the Western Grain Elevator Association, the Canadian National Millers Association, the Canadian Association of Counsel to Employers, the United Steelworkers and the Grain and General Services Union. Five written submissions were also provided by employer groups. The main concern in the grain milling and handling sectors relates 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 causing 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.

On-call workers

In the course of the consultations, employer and employee groups provided feedback on the notice regarding the application of the 96 hours’ notice of work schedules and 24 hours’ notice of shift change to on-call and standby employees. Although some stakeholders indicated a preference for regulations over the notice, the Labour Program considers that the notice has adequately addressed issues regarding the application of the new provisions to on-call and standby employees.

Modern treaty obligations and Indigenous engagement and consultation

There have been no impacts on modern treaties identified in relation to this proposal. However, as many on-reserve Indigenous employers and Indigenous employees are impacted by this regulatory proposal, 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 hours of work provisions.

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 proposed Regulations are required to provide exemptions from and modifications to the new hours of work provisions, and will create flexibility for employers to allow them to maintain continuous operations, thereby supporting supply chains in Canada and the Canadian economy. 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 proposed regulatory scenario in which exemptions from and modifications to the provisions are in place for certain classes of employees. This baseline 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 these proposed regulations will resolve these issues and provide greater clarity and certainty for both employers and employees in federally regulated workplaces. The impacts of this regulatory proposal on employers and employees may be limited in instances where current industry practices reflect the application of the new provisions as outlined in the Interim Measure.

The analysis of the impacts of the proposed regulations is primarily based on observations and feedback conveyed by employer and employee groups throughout the regulatory process, including two rounds of stakeholder consultations. This information is supplemented by Labour Program subject matter expertise, including an analysis of labour standards as well as research regarding related provisions in collective agreements (length and frequency of break periods, advance notice of work shifts, etc.).

The impacts of the proposed regulations have been assessed in qualitative terms. The benefits of the proposed 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 proposed regulations would apply to federally regulated employees and employers in the road transportation, postal and courier, the marine (pilotage, marine transportation and long-shoring) and the grain (grain handling/elevators, and milling) sectors. There are approximately 232 000 federally regulated employees in these classes, 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 proposed 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 would impede their ability to respond to fluctuating customer demands and other conditions over which they have little control (e.g. weather, market pressures, employee’s absences), while also challenging their ability to remain competitive due to upward pressure on costs. The proposed Regulations would bring relief to employers from these legislative obligations in respect of their application to targeted classes 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 would benefit from the higher viability of employers, afforded by the regulatory flexibility created by the exemptions and modification. As the proposed 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 would 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 have been proposed to 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, stakeholders stated that they commonly rely on casual and temporary employees to fill last-minute staffing needs. Stakeholders 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 developing a set of clear modifications and exemption regulations offering flexibility to meet industry specific scheduling needs, the proposed Regulations mitigate the risk of employers increasing their reliance on on-call scheduling, preserving overall access to scheduled hours of work.

Reduction in 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 regulatory proposal for both the 24 hours’ notice of shift change and the 96 hours’ notice of schedule will decrease scheduling certainty for employees. Employees will have to be more flexible in managing unpredictable scheduling changes. In the case of modifications to break and rest provisions, employees would 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 regulatory proposal acts to 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 proposed 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 proposed 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 proposed criteria and adapt breaks and rest periods accordingly. These costs are anticipated to be negligible and would be implemented 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 incurred entirely in the first year following the coming into force of these proposed Regulations.

Small business lens

The proposed Regulations would create exemptions from and/or modifications to the current legislation. The proposed Regulations would 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 proposed Regulations are expected to be minimal. It is therefore expected that small businesses will generally benefit from the introduction of the proposed Regulations.

One-for-one rule

The one-for-one rule does not apply as the proposed Regulations would 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 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 employees’ 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 proposed Regulations. The proposed Regulations would 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 Hours of Service Regulations pertaining to cycles of work and on-duty/off-duty time for motor vehicle operators. Under these regulations, 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 fright truck drivers under Transport Canada regulations, the proposal would 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. These regulations require that employees with specific certifications must be available to safely operate a vessel. 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 proposed 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 proposed 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 proposed Regulations provide exemptions and modifications to the legislation, the proposal has 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, marine and grain sectors are predominately male, as has traditionally been the case throughout the history of these industries. For this reason, the proposal will proportionally have more of an impact on men.

As previously discussed in this document, the regulatory proposal has 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 break and rest 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 predominately male employees, this will have a higher positive impact on men. Women will also experience a positive impact, albeit of a lower proportion.

The proposed 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 proposed.

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. 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 sector

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

Exemption from the 96 hours’ notice of work schedule and the 24 hours’ notice of shift change: These employees’ hours of work depend largely on unpredictable factors, such as customer orders, traffic and weather conditions that the employer cannot reasonably be expected to predict within sufficient time to implement the new scheduling requirements. Highway motor vehicle operators and city motor vehicle operators are commonly assigned work through an open board system, where they receive shifts in accordance with their availability as they arise. Therefore, the 96 hours’ notice of work schedule and 24 hours’ notice of shift change cannot reasonably be applied to these classes of employees.

Exemption from the 30-minute break: In order for employees in this class to take a break, the vehicle must be safely parked, though unpredictable factors, such as traffic and weather conditions may prevent a driver from stopping their vehicle when planned. Additionally, highway motor vehicle operators and city motor vehicle operators are very limited as to where they can park, especially when they are on the highway, where they must stop at designated truck stops. Therefore, the 30-minute break provision cannot reasonably be applied to these classes of employees.

Exemption to the 8-hour rest period: It is a common practice in the trucking industry for motor vehicle operators to take rest periods shorter than eight hours. Therefore, the 8-hour rest period provision cannot reasonably be applied to these classes of employees.

Furthermore, motor vehicle operators and city motor vehicle 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. The provision of the Commercial Vehicle Hours of Service Regulations is more flexible and it allows the 8 hours to be split into two periods under certain conditions.

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

Exemption from the 24 hours’ notice of shift change: These employees can be assigned shifts on short notice to fill scheduling gaps or replace other workers, even though they may not have formal on-call arrangements. Work shifts may need to be adjusted on short notice due to unpredictable factors, such as weather events, traffic conditions, delays in flight arrivals or delays for customs clearance that employers cannot reasonably be expected to predict, and which do not satisfy the requirements of the exception for unforeseeable emergencies. Therefore, the 24 hours’ notice of shift change cannot reasonably be applied to this class of employees.

Motor Coach operators who are not employed by a municipal or provincial transit authority

Exemption from the 24 hours’ notice of shift change: Motor coach operators may be assigned shifts as customers charter trips, which often occur with less than 24 hours’ notice and cannot be predicted by the employer. Not only may scheduled shifts be disrupted by weather events, changes to itineraries and pick up/arrival times often occur on short notice before the time of departure. Since so many trips are arranged within less than 24 hours, this provision cannot reasonably be applied to this class of employees; without exemption, it could lead to a significant loss of work hours for some employees.

Armoured car crew members

Exemption from the 24 hours’ notice of shift change: For security reasons, a minimum number of employees is required for each trip. As a result, armoured car crew members are required to provide employers with a specified advanced notice (generally 12 to 24 hours) of their inability to work a scheduled work period. Employers would therefore not be in a position to provide 24 hours’ notice of a shift change to any replacement crew member, and this could result in other employees being unable to work their shift. Furthermore, schedules must be changed on short notice due to unexpected weather conditions or changes to customer orders, which do not satisfy the requirements of the exception for unforeseeable emergencies. Therefore, the 24 hours’ notice of shift change cannot reasonably be applied to this class of employees.

Warehouse workers who handle, move, load and unload materials by hand or by means of material handling equipment, shippers, or receivers

Exemption from the 24 hours’ notice of shift change: These employees typically have scheduled shifts, and therefore it is reasonable to expect their employers to notify them of those schedules in advance. However, as these employees are needed at terminals to load and unload trucks and process shipments before they depart and when they arrive, their hours are subject to the same unpredictable factors that impact highway motor vehicle operators and city vehicle operators’ schedules, namely traffic, weather conditions, vehicle breakdowns, delays at border crossings or delays of incoming shipments. These classes of employees are considered as being “tied to the load” and form an integral part of the supply chain. Therefore, the 24 hours’ notice of shift change cannot reasonably be applied to this class of employees.

Dispatchers

Exemption from the 24 hours’ notice of shift change: Dispatchers typically have scheduled shifts, so their employers can reasonably be expected to provide these schedules in advance. However, dispatchers must work during the same time as highway motor vehicle operators and city motor vehicle operators, so their hours are subject to the same unpredictable factors (e.g. weather conditions, changes to customer orders, delays on border crossings). Highway motor vehicle operators and city motor vehicle operators depend on dispatchers in order to carry out their job effectively and rely on dispatchers to provide them with key information, such as the location of load pick up or drop off. Therefore, the 24 hours’ notice of shift change cannot reasonably be applied to this class of employees.

Mechanics

Exemption from the 24 hours’ notice of shift change: Mechanics are frequently called in to work in response to sudden vehicle breakdowns and must act quickly and efficiently. Their hours are made even more uncertain as they may have to travel long distances to get to the motor vehicle and the nature of the mechanical failure may not be known until the mechanic arrives. The problem may be further complicated by the nature of the shipment (e.g. where the shipment contains livestock). Therefore, the 24 hours’ notice of shift change cannot reasonably be applied to this class of employees.

Marine sector

Operations controllers engaged in dispatching marine traffic or in bridge, lock and weir operations

Modification to the 30-minute break: Operation controllers are responsible for the safe movement of marine traffic in certain waters. This is a dynamic work environment, and employees are not always able to take breaks at specific intervals. Employees take breaks around duty schedules. A modification is proposed to prevent serious detriment to the operation of the industrial establishment by ensuring that staff are always available. This will limit the operational risk to individuals, equipment and/or infrastructure that could occur if break times were not flexible and staff were not available when needed.

Dispatchers who are engaged in the assignment of marine pilots, launch masters, marine engineers and deckhands

Modification to the 30-minute break: Employees in this class often work alone, and are in charge of a particular geographical area. The work is unpredictable and therefore dispatch employees need to have the flexibility to split or postpone breaks as needed. Without a modification, the length of shifts would have to be reduced in order to allow a second employee to come in and take over the geographical area during the break which would thereby result in a loss of work hours and income for current employees. To prevent undue prejudice to the employees in this class, a modification to the 30-minute break is proposed.

Marine pilots who are employed in a compulsory pilotage area

Modification to the 8-hour rest period: The 8-hour rest provision presents a unique problem as marine pilots have various work assignments throughout the workday, some of which are very short. The requirement to take 8 hours of rest between each of those short work periods may result in employees being unable to schedule a sufficient number of hours to remain employed full-time. To prevent undue prejudice to the employees in this class, a modification to the 8-hour rest provision is proposed to provide employees with a rest period of a minimum of eight consecutive hours within each 24-hour period in which they perform a work period or shift. Additionally, a modification is required to ensure that the unforeseeable emergency exception to the 8-hour rest provision continues to apply to this class of employees.

Exemption from the 30-minute break: Marine pilots, while on a vessel, need to be available at all times to control the vessel for the duration of the pilotage assignment. There is time for breaks for these employees during their pilotage assignments, but it can be unpredictable and is largely dependent on weather, duration of the voyage and relevant regulations administered by Transport Canada. Marine Pilots are typically assigned individually to vessels, which means that a second pilot would not be available to provide relief during any breaks. Therefore, the 30-minute break cannot reasonably be applied to employees in this class.

Launch masters, pilot boat captains, marine engineers and deckhands employed in marine pilotage services

Modification to the 8-hour rest period: The 8-hour rest provision presents a unique problem as these classes of employees work various work assignments throughout the workday, some of which are very short. The requirement to take 8 hours of rest between each of those short work periods may result in employees being unable to schedule a sufficient number of hours to remain employed full-time. To prevent undue prejudice to the employees in this class, a modification to the 8-hour rest provision is proposed to provide employees with a rest period of a minimum of 8 hours, with at least 6 of those hours being consecutive, within each 24-hour period in which they perform a work period or shift. Additionally, a modification is required to ensure that the unforeseeable emergency exception to the 8-hour rest provision continues to apply to this class of employees.

Modification to the 30-minute break: The timing of breaks for this class of employees is based on the rotating needs of the vessel, which vary with both the operational needs and the requirements for a minimum crew complement requirements as required by Transport Canada regulations. The safe operation of the vessel must be the primary priority of employers. To prevent serious detriment to the operation of the industrial establishment, a modification to the 30-minute break is proposed. This will allow the flexibility required to meet the requirements for safe operation, which is of particular concern for smaller vessels (e.g. pilot boats) that can hold a limited number of personnel.

Dockworkers, longshore persons, shiploader operators, stevedores, barge loaders, boat loaders, dock hands, dockpersons, lumpers, checkers, planners, forepersons, tower loader operators, wharfpersons, tanker loaders, machinery operators, stowers and mechanics

Exemption from the 96 hours’ notice of work schedule and the 24 hours’ notice of shift change: Long-shoring is a unique industry where 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. For a significant number of workplaces in the longshore industry, work scheduling arrangements are dealt with in collective agreements in a very prescriptive fashion and are based on either a union hall model or a hybrid of shifts and dispatched assignments. Additionally, the work is continuous (24/7) and unpredictable. In certain 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, and allows people to engage in care of family and other pursuits. Therefore, the 96 hours’ notice of work schedule and 24 hours’ notice of shift change cannot reasonably be applied to these classes of employees.

Modification to the 8-hour rest period: The 8-hour rest provision presents a unique problem as employees have various work assignments throughout the workday, some of which are very short. For example, in a 24-hour period, an employee may take three shifts of four hours each. If they were required to take 8 hours of rest between each of these short work periods, they would not be able to get their desired number of hours. Implementing the existing provision without a modification would reduce the number of hours an employee could work in the day significantly, and would likely result in employees losing out on full-time hours. It would also have a negative impact on employees’ earning ability. To prevent undue prejudice to the employees in this class, a modification to the 8-hour rest provision is proposed to provide employees with a rest period of a minimum of 8 consecutive hours within each 24 hour period in which they perform a work period or shift. Additionally, a modification is required to ensure that the unforeseeable emergency exception to the 8-hour rest provision continues to apply to this class of employees.

Modification to the 30-minute break: Once engaged in the unloading or loading of cargo, ceasing operations could present a safety risk and/or pose a hazard for personnel, equipment and infrastructure. To prevent serious detriment to the operation of the industrial establishment, a modification to the 30-minute break provision is proposed.

Employees engaged in the operation of a continuously crewed harbour vessel; and masters, deck officers, engineering officers, radio operators, electrotechnical officers, and ratings employed on board a vessel for longer than 24 consecutive hours

Exemption from 24 hours’ notice of shift change: The new 24-hour notice provision would not offer the level of flexibility required to comply with the safety requirements, should there be unexpected changes in personnel, including as a result of injury or illness, mandatory rest, and increased crewing requirements for operations during inclement weather. Therefore, the 24 hours’ notice of shift change cannot reasonably be applied to these classes of employees.

Modification to the 8-hour rest period: Employers are subject to the Marine Personnel Regulations administered by TC, which impose requirements and procedures (i.e. the number of people on watch, which types of certifications employees must possess for certain activities, and the number of personnel that must be on the ship), to ensure safety, which must be the primary priority of vessel operations. Given that employees in these classes may work several short shifts throughout the day, it may not be reasonable for them to have to take rest periods of 8 hours between every work assignment. The application of this provision without modification would not provide the required flexibility to safely operate the vessel. To prevent undue prejudice to the employees in this class, and serious detriment to the operation of the industrial establishment, a modification to the 8-hour rest provision is proposed to provide employees with a rest period of a minimum of 8 hours, with at least 6 of those hours being consecutive, within each 24-hour period in which they perform a work period or shift. Additionally, a modification is required to ensure that the unforeseeable emergency exception to the 8-hour rest provisions continues to apply to these classes of employees.

Modification to the 30-minute break: The timing of breaks for these classes of employees is based on the rotating needs of ship operations, which, in turn, depends on factors such as weather and the requirements of safe manning and crew complement as set out in the Marine Personnel Regulations administered by Transport Canada. Safe vessel operations must be the primary priority of employers, and the new break requirement would not offer the level of flexibility necessary to adjust staffing complements to meet these requirements. This is of particular concern for smaller vessels, which are limited in the number of personnel that can be aboard. To prevent serious detriment to the operation of the industrial establishment, a modification to the 30-minute break is proposed.

Masters, deck officers, engineering officers, radio operators, electrotechnical officers, and ratings employed on board a vessel for longer than 24 consecutive hours

Exemption from the 96 hours’ notice of work schedule : Employers are subject to the Marine Personnel Regulations administered by Transport Canada, which impose requirements and procedures (i.e. the number of people on watch, which types of certifications employees must possess for certain activities, and the number of personnel that must be aboard the ship), to ensure safety, which must be the primary priority of vessel operations. The new 96-hour notice provisions of the Code would not offer the level of flexibility required to comply with these safety requirements, should there be unexpected changes in personnel, including as a result of injury or illness, mandatory rest requirements, and increased personnel requirements for operations during inclement weather. Therefore, the requirement to provide 96 hours’ notice of schedules cannot reasonably be applied to this class of employees.

Grain sector

Elevator operators, inland terminal elevator operators and port terminal elevator operators who are employed in grain-handling facilities

Exemption from the 24 hours’ notice of shift change: The hours of work for this class of employees depend on unpredictable factors, such as weather, train and vessel schedules as well as the availability of railcar spotters. Additionally, any disruptions to the supply chain will ultimately impact the schedules of these employees, as their schedules are based on the arrivals of the trains or vessels at the elevator or terminal. The arrival time of trains may be modified many times in the days prior to their arrival, forcing employers to modify their employees’ schedules accordingly, often within 24 hours of the start of a work shift. Therefore, the requirement to provide 24 hours’ notice of shift change cannot reasonably be applied to this class of employees.

Railcar spotters, warehouse workers and grain receivers who are employed in grain handling facilities

Exemption from the 24 hours’ notice of shift change: This class of employees must physically mount the railcar as part of their duties and therefore cannot work in cases where there is no railcar or when it would be unsafe to do so, such as in inclement weather. The schedules of these employees are based on the arrivals of the trains or vessels at the elevator or terminal. Consequently, any disruption to the supply chain will ultimately impact the schedules of these employees. Therefore, the requirement to provide 24 hours’ notice of shift change cannot reasonably be applied to this class of employees.

Millwrights, electricians, power engineers and welders who are employed in grain handling facilities

Exemption from the 24 hours’ notice of shift change: This class of employees is in charge of maintenance and emergency repairs in the facility, and are critical to the safe operation of the facility. 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 these tasks. While they usually have a schedule for performing routine maintenance, they need to be available on short notice to repair equipment breakdowns. The requirement to provide 24 hours’ notice of shift changes has the potential to stop operations of the facility and can therefore not reasonably be applied to this class of employees.

Laboratory technicians who are employed in grain handling facilities and employees who are involved in the grading, quality assurance and inspection of grain who are employed in grain handling facilities

Exemption from the 24 hours’ notice of shift change: This class of employees works in grain handling facilities and is responsible for quality assurance and testing products. Products cannot be packaged without being subjected to a quality assurance test. Furthermore, elevators are often located in remote areas where there is a limited number of employees who are qualified to perform these tasks. Due to the critical nature of these employees, the inability to replace these employees with less than 24 hours’ notice has the potential to stop operations, especially as the conditions that may require a change in work shift fall outside the employer’s control but may not qualify as an unforeseeable emergency. Therefore, the requirement to provide 24 hours’ notice of shift change cannot reasonably be applied to these classes of employees.

Millers and assistant millers who are employed in grain milling facilities

Exemption from the 24 hours’ notice of shift change: Millers and assistant millers are critical to the operation of a mill. They are trained and capable of operating the entire facility and perform all of the tasks of other employees in the mill. The absence of these employees would likely cause the facility to shut down. This is complicated by the fact that there is a shortage of qualified employees in the industry, in part because of the rural location of the worksites. Therefore the requirement to provide 24 hours’ notice of shift change cannot reasonably be applied to these classes of employees.

Grain cleaning operators who are employed in grain milling facilities

Exemption from the 24 hours’ notice of shift change: Grain cleaning equipment operators are critical employees for the operation of a mill. They are in charge of the first step of the process of grain milling, which is to clean the grain. All subsequent steps rely on the work done by this class. Should any of these employees be absent for any reason, the imposition of the 24 hours’ notice of shift change requirement would prevent the employer from calling replacements to come in and may therefore affect the schedules of other classes of employees as well as the stop operations. Therefore the requirement to provide 24 hours’ notice of shift change cannot reasonably be applied to this class of employees.

Implementation

The classes of employees to whom the exemptions or modifications would apply is readily identifiable (on the basis of occupation) 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 IPGs to support employers and employees in understanding the new hours of work provisions of the Code.

Currently, compliance with Part III of the Code is achieved using a variety of approaches, including education and counselling, and the investigation of complaints. The Labour Program is undergoing a shift toward a more proactive approach to compliance and enforcement with the expected adoption in 2021 of an administrative monetary penalty regime made under the new Part IV of the Code. It is anticipated that this new regime will help fill an existing gap in terms of the enforcement of the Code.

Coming into force

The proposed Regulations would come into force in summer 2021 further to final publication in Part II of the Canada Gazette in spring 2021.

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

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to paragraphs 175(1)(a)^{footnote a} and (b)^{footnote b} of the Canada Labour Code^{footnote c}, proposes to make the annexed Exemptions from and Modifications to Hours of Work Provisions Regulations.

Interested persons may make representations concerning the proposed Regulations within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Danijela Hong, Director, Labour Standards and Wage Earner Protection Program, Employment and Social Development Canada, Place du Portage, Phase II, 10th floor, 165 de l’Hôtel-de-Ville Street, Gatineau, Quebec J8X 3X2 (telephone: 819‑654‑1625; email: EDSC.DMT.ConsultationNTModernes-ConsultationModernLS.WD.ESDC@labour-travail.gc.ca).

Ottawa, December 10, 2020

Julie Adair
Assistant Clerk of the Privy Council

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 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.

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 section 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, forepersons, tower loader operators, wharfpersons, tanker loaders, machinery operators, stowers 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.

Continuously crewed harbour vessel

12 (1) Employees who are engaged in the operation of a continuously crewed harbour vessel are exempt from the application of section 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

(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.

Employees on vessel for longer than 24 hours

13 (1) The following employees who are employed on board a vessel for longer than 24 consecutive hours 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, durng 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

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 consecutive hours 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 consecutive hours within 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

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

Rest period

(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

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 facilities are exempt from the application of section 173.1 of the Act.

Laboratory technicians

22 Laboratory technicians who are employed in grain handling 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 and assistant millers

25 Millers and assistant millers who are employed in grain milling facilities are exempt from the application of section 173.1 of the Act.

Coming into Force

Registration

26 These Regulations come into force on the day on which they are registered.

Canada Gazette, Part I, Volume 154, Number 51: Exemptions from and Modifications to Hours of Work Provisions Regulations

REGULATORY IMPACT ANALYSIS STATEMENT

Issues

Background

New hours of work provisions

Application of the new hours of work provisions

Exceptions and exemptions

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

Phased approach to regulatory development

Objective

Description

Table a2 note(s)

Table a3 note(s)

Table a4 note(s)

Regulatory development

Consultation

Initial feedback from the first round of consultations — Summer 2019

Feedback from the second round of consultations — Spring 2020

(a) Road transportation sector

(b) Postal and courier sector (the armoured car industry was included in this consultation meeting)

(c) Marine sector

(d) Grain sector

On-call workers

Modern treaty obligations and Indigenous engagement and consultation

Instrument choice

Regulatory analysis

Affected stakeholders

Benefits and costs

Benefits

Benefits to employers

Benefits to employees

Costs

Costs to employers

Costs to the Government of Canada

Small business lens

One-for-one rule

Regulatory cooperation and alignment

Strategic environmental assessment

Gender-based analysis plus (GBA+)

Rationale

Road transportation and postal and courier sector

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

Motor Coach operators who are not employed by a municipal or provincial transit authority

Armoured car crew members

Warehouse workers who handle, move, load and unload materials by hand or by means of material handling equipment, shippers, or receivers

Dispatchers

Mechanics

Marine sector

Operations controllers engaged in dispatching marine traffic or in bridge, lock and weir operations

Dispatchers who are engaged in the assignment of marine pilots, launch masters, marine engineers and deckhands

Marine pilots who are employed in a compulsory pilotage area

Launch masters, pilot boat captains, marine engineers and deckhands employed in marine pilotage services

Dockworkers, longshore persons, shiploader operators, stevedores, barge loaders, boat loaders, dock hands, dockpersons, lumpers, checkers, planners, forepersons, tower loader operators, wharfpersons, tanker loaders, machinery operators, stowers and mechanics

Employees engaged in the operation of a continuously crewed harbour vessel; and masters, deck officers, engineering officers, radio operators, electrotechnical officers, and ratings employed on board a vessel for longer than 24 consecutive hours

Masters, deck officers, engineering officers, radio operators, electrotechnical officers, and ratings employed on board a vessel for longer than 24 consecutive hours

Grain sector

Elevator operators, inland terminal elevator operators and port terminal elevator operators who are employed in grain-handling facilities

Railcar spotters, warehouse workers and grain receivers who are employed in grain handling facilities

Millwrights, electricians, power engineers and welders who are employed in grain handling facilities

Laboratory technicians who are employed in grain handling facilities and employees who are involved in the grading, quality assurance and inspection of grain who are employed in grain handling facilities

Millers and assistant millers who are employed in grain milling facilities

Grain cleaning operators who are employed in grain milling facilities

Implementation

Coming into force

Contact

PROPOSED REGULATORY TEXT

Exemptions from and Modifications to Hours of Work Provisions Regulations

Definition

PART 1

Road Transportation Sector and Postal and Courier Sector

PART 2

Marine Sector

PART 3

Grain Sector

Coming into Force