The Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') is now in force and has made significant changes to the Employment Standards Act 2000. Included in the changes to the act are new provisions on scheduling, including on-call work, changes to scheduled shifts and shift cancellation.
Although these changes are more delayed than some of the other changes made to the Employment Standards Act and do not come into effect until January 1 2019, employers should be aware of them in order to ensure compliance in time.
This update summarises the key changes regarding scheduling.
Minimum pay – the three-hour rule
At present, Regulation 285/01 of the Employment Standards Act provides that employees are deemed to have worked for three hours if they regularly work more than three hours per day and are required to present themselves for work but work less than three hours. This three-hour rule applies to minimum wage rates only. Therefore, employers must ensure that employees receive either their regular wages for time worked or three hours' minimum wage, whichever is greater. The three-hour rule does not apply if an employer cannot provide work to an employee because of:
- fire;
- lightning;
- power failure;
- storms; or
- similar causes beyond the employer's control that result in the cessation of work.
The new three-hour rule that will come into effect on January 1 2019 changes this calculation. If an employee regularly works more than three hours per day and is required to present himself or herself for work but works less than three hours, despite being available to work longer, the employer must pay the employee three hours' wages equal to the greater of:
- the employee's regular rate for three hours' work; or
- the sum of:
- the amount that the employee earned for the time worked; and
- wages equal to the employee's regular rate for the remainder of the time.
The first calculation is clear. The second calculation is more complex. Under the second calculation, the employee would receive pay for time worked (at whichever rate is applicable to the time worked) plus pay for the remainder of the three hours at the employee's regular rate. For example, if an employee was scheduled to work three hours of overtime but worked for only 1.5 hours, the first 1.5 hours would be compensated at overtime rates and the remaining 1.5 hours would be compensated at the employee's regular rate.
The three-hour rule will not apply if the employer cannot provide work for the employee because of:
- fire;
- lightning;
- power failure;
- storms; or
- similar causes beyond the employer's control that result in the cessation of work.
At present, the Employment Standards Act does not provide for any payment to employees who are on call to work and are not called in or required to work. From January 1 2019 if an employee who is on call is not required to work or is required to work but works less than three hours, despite being available to work longer, the employer must pay the employee three hours' wages, equal to the greater of:
- the employee's regular rate for three hours' work; or
- the sum of:
- the amount that the employee earned for time worked; and
- wages equal to the employee's regular rate for the remainder of the time.
This will not apply if the employee was on call for the purposes of ensuring the continued delivery of essential public services, regardless of who delivers those services, and was not required to work.
The on-call pay applies only once in each 24-hour period, beginning at the start of the first on-call period. Therefore, even if an employee is on call multiple times during a 24-hour period, he or she could trigger entitlement to be paid for three hours on only one occasion during that period.
Right to refuse changes in schedule or on-call shifts
From 2019 employees will have the right to refuse an employer's request or demand to work or be on call on a day that they were not scheduled to work or be on call if the request or demand is made less than 96 hours before the time that they would commence working or being on call.
The right to refuse will not apply if the employer's request or demand is:
- to deal with an emergency;
- to remedy or reduce a threat to public safety; or
- to ensure the continued delivery of essential public services, regardless of who delivers those services.
For this purpose, 'emergency' is defined as a situation or impending situation that:
- constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property; and
- is caused by:
- forces of nature;
- a disease or other health risk;
- an accident or action whether intentional or otherwise; or
- a situation in which a search and rescue operation takes place.
The Ministry of Labour could prescribe additional reasons in the future; however, these are the only exceptions set out in the Employment Standards Act at present.
Employees who refuse an employer's request or demand to work or be on call must notify the employer of the refusal as soon as possible.
From 2019 an employer will also have to pay employees wages equal to their regular rate for three hours' work if it cancels their scheduled day of work or on-call period within 48 hours before the time that they were due to commence working or being on call.
'Cancellation' means that the entire scheduled day of work or on-call period is cancelled, but does not include the shortening or extending of a shift.
The shift cancellation provisions will not apply if the employer cannot provide work for the employee because of:
- fire;
- lightning;
- power failure;
- storms;
- similar causes beyond the employer's control that result in the cessation of work; or
- weather-related reasons if the nature of the work is weather-dependent.
If a collective agreement that is in effect on January 1 2019 conflicts with the new Employment Standards Act with respect to scheduling (ie, payment for being on call, the ability to refuse to work on a scheduled day off or shift cancellation), the collective agreement will prevail in the short term, until the earlier of the date on which the collective agreement expires or January 1 2020.
There is some good news for employers – an employee's entitlement in respect of one scheduled day of work or scheduled on-call period will be limited to three hours' payment. Employees will not be able to trigger an entitlement to three hours' pay multiple times under the above provisions.
Requests for changes in work schedule or location
Finally, from 2019 employees who have been employed for a period of three months or more will be able to submit a request to the employer to change their schedule or work location.
An employer that receives this type of request must discuss it with the employee and notify him or her of its decision with respect to the request within a reasonable period after receiving it. The Employment Standards Act provides no guidance on what is considered a reasonable period.
Where the employer grants the employee's request, the notification advising the employee that the request has been granted must include the date on which the changes will take effect and the duration of the changes. If the employer denies the request, the notification advising the employee that the request has been denied must include the reasons for the denial.
January 1 2019 will soon be here. Therefore, employers should review their policies and pay practices to determine what changes (if any) must be made and for which employees.
Employers should also ensure that managers are aware of:
- the three-hour rule;
- the minimum on-call pay rule;
- the cancellation of work or on-call assignment rule; and
- an employee's right to refuse work without 96 hours' advance notice.
Employers should also develop a protocol to deal with employees' requests for changes to their schedule or work location. Do policy documents need to be revised? What factors will be considered? What will the response look like? Can standardised forms be created?
Although employers are dealing with other changes required by Bill 148, there is time to get a jump start on the scheduling and hours-of-work changes.
For further information on this topic please contact Karen Sargeant at Fasken's Toronto office by telephone (+1 416 366 8381) or email ([email protected]). Alternatively, contact Megan Beal at Fasken's Ottawa office by telephone (+1 613 236 3882) or email ([email protected]). The Fasken website can be accessed at www.fasken.com.
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