An interim break for employers? Policy-based exemptions from certain new provisions under the Canada Labour Code published

Employment and Social Development Canada’s Labour Program (Labour Program or Program) has published Interpretation, Policy and Guideline 101 (IPG), which deals with the scope of application of the Canada Labour Code’s new provisions related to hours of work and rest that came into force on September 1, 2019. While the IPG is not legally binding, it represents the Labour Program’s policy-based approach to the current absence of regulations listing exemptions to these new provisions for certain industrial sectors, and in particular those with continuous operations.

Specifically, the IPG deals with the mandatory:

• 30-minute break period for every five consecutive hours worked;
• 8-hour rest period between shifts;
• 96-hour notice of schedule; and
• 24-hour notice of shift change.

The IPG applies to federally regulated employers in the following industrial sectors:

• Road transportation;
• Rail;
• Marine transportation;
• Longshoring;
• Air transportation & airports;
• Telecommunications;
• Couriers;
• Broadcasting; and
• Grain elevators & millers.

Exemptions and modifications

Under the Code, the Minister of Labour (Minister) may make regulations that would exempt or modify certain classes of employees from the above-noted provisions, if they cannot reasonably be applied or if their application would be unduly prejudicial to the interests of certain classes of employees or seriously detrimental to the industrial establishment’s operations. However, the Labour Program has advised it is unlikely that any such regulatory exemptions or modifications will be enacted by the Minister until 2020, at the earliest.

In light of this policy intent, and to address the lack of regulatory guidance as of September 1, 2019, the IPG states that “employers may carry on business as usual” for the classes of employees identified in a Schedule to the IPG. The Schedule lists job titles, grouped by industrial sector, and there is an “X” to indicate which of the new hours of work provisions would not apply to those classes of employees, according to this IPG interpretation.

Complaints to be investigated

Despite IPG’s interpretation that it can be “business as usual” for classes of employees listed in the Schedule, the IPG goes on to state the Schedule is not intended to deny employees their right to file a complaint with the Labour Program. The IPG further clarifies that all complaints received will be investigated, and, if the complaint is founded, the Minister will determine whether to issue an assurance of voluntary compliance. If this happens, the IPG states the “Labour Program will work with the employer while work continues on the development of hours of work exemption and modification regulations.”

Takeaways

The IPG appears to provide a temporary reprieve to employers in certain sectors and reflects a practical response to the current absence of regulations addressing exemptions to these new hours of work and rest provisions.

That said, employers should approach applying the IPG and its Schedule with caution. The IPG is a policy and interpretation guideline, reflecting the Labour Program’s temporary intended approach to these new Code provisions, but it is not legally binding. 

As such, the IPG may not necessarily be upheld or applied by other decision-makers in a litigation setting. Indeed, it should not be forgotten that despite the publication of the IPG and its Schedule, employees have a right under the Code to file complaints with the Labour Program if employers do not conform with the new hours of work and rest provisions that came into force on September 1, 2019. Employers must be aware that all complaints made against them regarding hours of work and rest provisions will be investigated, and may lead to further consequences. 

Furthermore, the IPG is only an interim measure to address the implementation of the new hours of work and rest provisions and will no longer be in effect once a regulation addressing these provisions comes into force. It is possible the classes of employees listed in the Schedule will not ultimately receive a regulatory exemption or modification as the regulatory process is independent of the IPG. Therefore, even if employers temporarily delay compliance with certain provisions in reliance on the IPG, they may ultimately have to comply if a regulatory exemption is not granted.

To review a complete list of all IPGs published under the Code, please click here.