Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Further to its previous comments, the Committee again expresses concern at the many discrepancies between the Canada Labour Code and the provincial legislation on hours of work, and the provisions of the Convention. It draws the Government’s attention to the main areas where there are problems in applying the Convention, after a brief overview of the applicable legislative framework.

Articles 2, 5 and 6, paragraph 1(b), of the Convention. Daily and weekly hours of work. Federal legislation. The Committee notes that according to section 169(1) of the Canada Labour Code, standard hours of work are eight per day and 40 per week. It notes that in certain circumstances, hours of work may be averaged over a period of two weeks or more. It further notes that section 171 of the Canada Labour Code allows workers to be employed in excess of the standard hours of work provided that the number of hours they work in a week does not exceed 48 or a lower number established by the regulations of the establishment concerned and which may likewise be averaged over a period of two weeks or more under section 172. The Committee also notes that section 175 of the Code allows the Governor in Council to make regulations establishing different hours of work provisions for certain classes of employees. Lastly, it notes that section 176 of the Code allows the Minister of Labour to grant exceptions under which, for a certain class of employees, the maximum hours of work may be exceeded.

Provincial legislation – Alberta. The Committee notes that section 16(1) of the Employment Standards Code limits the length of the working day to 12 hours, but sets no limit for weekly hours of work. It further notes that section 20 of the Code makes provision for recourse to a compressed work week, in which hours of work may not exceed 12 per day and 44 per week. Lastly, it notes that according to section 20(2)(d), if the compressed work week is part of a cycle (system of averaging hours), the weekly limit of 44 hours is not absolute but applies on average over the cycle.

British Columbia. The Committee notes that section 35 of the Employment Standards Act limits standard working hours to eight a day and 40 a week, but that section 37 allows this rule to be waived if an agreement is reached to average the hours of work. It notes that such an agreement may be concluded for a period ranging from one to four weeks. In such cases, the average weekly hours of work may not exceed 40 and the normal daily hours of work may not exceed 12, any hours worked beyond these limits being payable at overtime rates.

Prince Edward Island. The Committee notes that section 15(1) of the Employment Standards Act establishes a standard work week of 48 hours. It notes that section 15(2) allows the Standards Board to exempt specific employees or industries from this rule and to substitute other limits.

Manitoba. The Committee notes that section 10 of the Employment Standards Code establishes a standard work week of 40 hours or any greater number of hours per week prescribed by regulation or permitted by the Employment Standards Director, who issues a permit authorizing the hours to be increased pursuant to section 13. It notes that where such a permit is issued, hours of work may be spread over a number of weeks (for example, 120 hours over three weeks). The Committee further notes that according to section 14(2) and (3) of the Employment Standards Code, such permits are valid for not more than three years and that before issuing them, the Director must consider a number of factors, including any effect the permit could have on the safety, health or welfare of the public or the employees concerned. Furthermore, the Committee notes that pursuant to section 10 of the same Code, the standard daily hours of work are eight hours or any greater number of hours per day provided for in a collective agreement applying to the worker concerned, or by regulation or authorization by the Director by means of a permit.

New Brunswick. The Committee notes that section 14 of the Employment Standards Act provides that subject to the provisions on weekly rest and children and to any other Act, there is no limit on the number of hours an employee may work during any daily, weekly or monthly period. It notes that sections 15(1) and 16 of the Act allow the Lieutenant-Governor in Council to prescribe the maximum number of hours beyond which a higher wage rate must be applied, without, however, limiting hours of work. It notes in this connection from information in the Government’s report that the authorities of the province do not intend to amend the legislation.

Nova Scotia. The Committee notes that the Labour Standards Code contains no provision limiting daily or weekly hours of work, other than section 66, which provides that workers are as a rule entitled to 24 consecutive hours of weekly rest. It notes that section 40(4) of the Code merely imposes payment of an overtime rate equal to at least 50 per cent more than the normal rate to employees who are required to work in excess of 48 hours a week. The Committee further notes that section 2(4A) of the General Labour Standards Code Regulations excludes from the application of this rule workers to whom the Minimum Wage Order (Construction and Property Maintenance) applies. Lastly, it notes that section 6 of the abovementioned Order sets a maximum work period of 110 hours within two consecutive weeks for employees to whom the Order applies.

Ontario. The Committee notes that according to section 17(1) of the Employment Standards Act, an employee may not work more than eight hours a day or than the number of hours in the employee’s regular work day if that number is more than eight hours, or than 48 hours a week. It observes, however, that according to section 17(2), the daily limit may be exceeded if the employee and employer so agree. Furthermore, section 17(3) allows the 48-hour weekly limit to be exceeded provided that employee and employer so agree and that the employer has the approval of the Employment Standards Director pursuant to section 17.1 of the Act. It notes that according to section 17.1(14), such approval allows the employee to work more than 60 hours in a week, but its validity is limited to one year. As to the limitation of daily hours of work, the Committee notes that daily rest may not be less than 11 hours other than for an employee who is on call. The Committee infers from all the foregoing that the length of the working hours may be up to 13 hours per day and may exceed 60 hours per week, subject to the payment of a higher rate of pay for hours worked in excess of 44 a week (or the grant of compensatory rest), as provided in section 22 of the Employment Standards Act.

Quebec. The Committee notes that section 52 of the Labour Standards Act establishes a standard working week of 40 hours, but observes that this limit is merely a threshold that triggers payment of overtime rates which confers the right to increased rate of pay of the workers concerned. It also notes that section 53 of the Act introduces the system of averaging of weekly hours of work, which may be established either by the employer with authorization from the Labour Standards Committee, or by collective agreement or decree. The Committee further notes that according to section 59.0.1 of the Act, other than in exceptional circumstances or in force majeure, employees may refuse to work more than four hours beyond their normal daily hours of work or more than 14 hours in every 24‑hour period, whichever is the shorter, or more than 12 hours per period of 24 hours in the case of employees whose daily hours of work are variable or non‑continuous.

Saskatchewan. The Committee notes that section 6(1) of the Labour Standards Act as a rule limits working hours to eight a day and 40 a week. It notes, however, that under section 6(2), these limits may be exceeded provided that the worker concerned is paid at a higher rate of at least 50 per cent for each hour worked in excess of the eight hours. The Committee also notes the exceptions to the requirement to pay overtime rates in the context of the compressed work week provided for in section 7 of the Act, and in the averaging of hours of work allowed by section 9. Lastly, the Committee notes that under section 12(1), an employer must obtain consent of his/her employees for them to work more than 44 hours a week, other than in emergency circumstances.

Newfoundland and Labrador. The Committee notes that according to section 5 of the Labour Standards Regulations, the standard hours of work beyond which overtime rates apply pursuant to section 25 of the Labour Standards Act, is 48 hours a week. It notes, however, that the only limitation on working hours contained in the Labour Standards Act is to be found in section 23, which requires daily rest of eight consecutive hours except in the case of an emergency that constitutes a hazard to life or property. The Committee infers that outside the case of an emergency, the length of the working day is up to 16 hours and that the law sets no weekly limit. Lastly, section 26(c) of the Act provides that the Lieutenant‑Governor in Council may fix the maximum number of hours in specified undertakings.

Fixing limits to daily and weekly hours of work. The Committee recalls that according to Article 2 of the Convention, standard working hours are to be limited to eight a day and 48 a week. It notes, however, that the Employment Standards Act of New Brunswick sets no limit either on daily or on weekly hours of work. In addition, the Employment Standards Act of Prince Edward Island does not regulate daily working hours. The Employment Standards Code of Manitoba sets a standard working day of eight hours, allowing to fix a different limit by collective agreement, regulation or by permission of the Employment Standards Director. It also notes that the legislation of Ontario allows to set by collective agreement a working day of up to 13 hours and, subject to administrative authorization, a working week in excess of 60 hours. Lastly, the Committee notes that the legislation of Nova Scotia sets standard working time at 110 hours over a two-week period in the construction sector.

Compressed work week. The Committee draws the Government’s attention to the fact that Article 2(b) of the Convention allows weekly hours of work to be spread unevenly, for example in the context of a compressed working week, but only if the length of the working day does not exceed nine hours. It notes in this connection that the Employment Standards Code of Alberta allows recourse to a compressed work week which allows a working day of up to 12 hours.

Averaging of hours of work. The Committee recalls that Article 5 of the Convention allows averaging of work hours only in exceptional cases where it is recognized that the normal limit of eight hours a day and 48 hours a week cannot be applied. It notes, however, that a number of legislative texts allow working hour arrangements to be introduced with no provision for ensuring compliance with these conditions. The Committee notes in this connection that the Canada Labour Code allows averaging of hours of work without setting any maximum limit to the periods for which they may be applied, the only condition being the consent of the union concerned or the approval of at least 70 per cent of the employees concerned. It notes in this connection the report “Fairness at Work: Federal Labour Standards for the 21st Century”, published in October 2006 by the Federal Labour Standards Review Commission. It notes in particular Recommendation 7.6, which seeks to provide a framework for the introduction of averaging arrangements. The Committee also notes that averaging is authorized by the legislation of Alberta and Manitoba with no particular restrictions. It also observes that working time arrangements of this kind are also allowed by the Labour Standards Act of Quebec, and by the legislation of Saskatchewan and British Columbia – in the latter province the period of reference may be of up to four weeks.

Overtime. The Committee wishes to underline that overtime work, in the context of temporary exceptions, is authorized only in the circumstances listed exhaustively in the Convention: in case of accident, actual or threatened, or in case of urgent work to be done to machinery or plant, or in case of force majeure (Article 3) or to enable an establishment to deal with an exceptional case of pressure of work (Article 6(1)(b)). It notes, however, that the limits placed on hours of work by the legislation of Nova Scotia, Quebec and Saskatchewan are merely a threshold beyond which the hours worked must be paid at a higher rate, with no specification as to the circumstances in which overtime work is authorized. It further notes that a similar provision is to be found in the Labour Standards Act and Regulations of Newfoundland and Labrador, which set a maximum working day of 16 hours.

The Committee requests the Government to take the necessary measures without delay to ensure that federal and provincial laws and regulations are brought into conformity with the provisions of the Convention on these matters. It asks the Government in particular to keep the Office informed of any decisions it may take with a view to implementing the recommendations in the report “Fairness at Work: Federal Labour Standards for the 21st^t Century”.

The Government is also asked to provide copies of any regulations adopted pursuant to section 175 of the Canada Labour Code, section 10 of the Employment Standards Code of Manitoba, or section 26(c) of the Labour Standards Act of Newfoundland and Labrador with a view to setting specific rules on hours of work for certain categories of workers. The Government is also asked to provide information on any exceptions to the standard rules on hours of work that have been granted pursuant to the following provisions: section 176 of the Canada Labour Code; section 15(2) of the Employment Standards Act of Prince Edward Island.

The Committee is raising other points in a request addressed directly to the Government.

[The Government is asked to reply in detail to the present comments in 2010.]