'For certain industries, these requirements have been very difficult to actually fulfill'
“In general, these rules are meant to make things less onerous for employers.”
So says Andrew Weizman, an associate at McCarthy Tetrault in Toronto, in discussing new regulations unveiled by Ottawa around hours of work provisions.
The amendments concern Part III of the Canada Labour Code which governs almost one million employees or about six per cent of the Canadian workforce. This concerns more than 18,000 employers in the federally regulated private sector, in industries such as international and inter-provincial transportation, banking, telecommunications and broadcasting, as well as federal Crown corporations and governance and administrative activities on First Nations reserves – but not the federal public service.
The Regulations Amending Exemptions from and Modifications to Hours of Work Provisions Regulations and the Administrative Monetary Penalties (Canada Labour Code) “will bring relief to employers from legislative obligations, with respect to targeted classes of employees, through exemptions or modifications in situations where the provisions cannot reasonably be applied or would cause serious adverse effects to business operations or employees,” says the government.
Exemptions or modifications to specified classes of employees
The amendments relating to the banking, telecommunications and broadcasting, and rail transportation sectors are set to come into force on Jan. 4, 2024. The amendments relating to the airline sector come into force on June 4, 2024.
Currently, the hours of work provisions require employers to provide a 30-minute break during every period of five consecutive hours of work. They must also provide employees with a rest period of at least eight hours between work periods or shifts.
When it comes to scheduling, employers must provide a written copy of the work schedule at least 96 hours before a first shift, and they must provide employees with at least 24 hours’ notice, in writing, of a shift change or addition.
But the recent Regulations have added exemptions or modifications to specified classes of employees in: banking, telecommunications and broadcasting, rail transportation and air transportation.
For example, an employer may require that an employee work additional hours, which would result in them having shorter rest periods, “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:
- threat to the life, health or safety of any person
- threat of damage to or loss of property
- threat of serious interference with the ordinary working of the employer’s industrial establishment.”
‘Very difficult requirements’ introduced in 2019
Back in 2019, hours of work amendments were meant to help employees with work-life balance and better predictability, so the government came up with break requirements and notices around changes of shifts, says Weizman.
“For certain industries, these requirements have been very difficult to actually fulfill. And it's also been affecting the ability of these industries to properly staff their operational needs.”
For example, transportation logistics can be disrupted by weather or mechanical issues, while breaking news can be unpredictable for the telecommunications industry, requiring quick staffing changes at an unpredictable rate, he says.
“Similarly, for banking, commission-based employees don't necessarily have a standard workweek, it's based on their client list on a week-to-week basis. So these prescribed hours of work aren't really applicable to the reality of these jobs.”
With the 2023 amendments, it appears the government is acknowledging it “overshot the mark” with those employee benefits, and now is “recalibrating based on feedback from these industries to create some exemptions to address these difficulties,” says Weizman.
“They either exempt the employees from the requirements, for example, for commissioned salespeople, or they change the way that the requirement applies.”
As of July 9, other amendments to the Canada Labour Code took effect concerning reimbursement for “reasonable work-related expenses paid out-of-pocket by the employee” and “a written statement of employment within the first 30 days of employment.”
‘Concerns around scheduling’ lead to greater flexibility
“There's definitely been some concerns around scheduling in these sectors. And hopefully this will smooth it out,” says Diane Harbin, an associate at Hicks Morley in Toronto.
“All of the industries that the changes are in, so it's banking, telecommunications, and broadcasting, rail transport, and air transport… work non-rigid hours, so they're not the nine to five. And I think after consultation with lots of employer groups and union groups and employee groups in those industries, [Ottawa] realized there was need for some greater flexibility.”
Through feedback from stakeholders, “the overarching theme” was that if they're bound to the strict 96-hour shifts, scheduling and eight-hour breaks, “sometimes they can't meet the demands of the market or the demands that are placed on them,” she says.
For example, an air traffic controller or a flight attendant might need to work longer, to meet the demands of how they're scheduled.
“So being able to have that flexibility to schedule shifts outside of the requirements of this CLC would be beneficial to employees and employers,” says Harbin.
As of June 12, 2023, the federal minimum age for workers to be employed in hazardous occupations will be upped to 18 from the current 17.
Exemptions for managers, flexible work arrangements
The new hours of work provisions also do not apply to managers and certain professionals (architects, dentists, engineers, lawyers and medical doctors).
Furthermore, the requirements for employers to provide at least 96 hours’ notice of work schedules and at least 24 hours’ notice of shift changes do not apply to a change that results from an employee’s request for a flexible work arrangement that is approved by the employer under subsection 177.1(1) of the Code.
As for the costs for employers in adapting to the changes, the government said they should be “negligible” when it comes to HR and systems management around employee schedules.
“These costs are anticipated to be negligible, with implementation being secured through well-established and existing administrative and human resources procedures. There is no anticipated increase in the number of work hours or the number of employees for employers to maintain existing operations.”
