Regulations Amending the Exemptions from and Modifications to Hours of Work Provisions Regulations and the Administrative Monetary Penalties (Canada Labour Code) Regulations: SOR/2023-180

Canada Gazette, Part II, Volume 157, Number 17

Registration
SOR/2023-180 August 4, 2023

CANADA LABOUR CODE

P.C. 2023-801 August 4, 2023

Whereas the Governor in Council is of the opinion that the application of certain provisions of Division I of Part III of the Canada Labour Code ^{footnote a}, without modification, to certain classes of employees who are employed in or in connection with the operation of certain industrial establishments would be or is unduly prejudicial to the interests of the employees in those classes or would be or is seriously detrimental to the operation of those industrial establishments;

And whereas the Governor in Council is satisfied that certain provisions of Division I of Part III of that Act cannot reasonably be applied to certain classes of employees;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Labour makes the annexed Regulations Amending the Exemptions from and Modifications to Hours of Work Provisions Regulations and the Administrative Monetary Penalties (Canada Labour Code) Regulations under paragraphs 175(1)(a)^{footnote b} and (b)^{footnote c} and subsection 270(1)^{footnote d} of the Canada Labour Code ^{footnote a}.

Regulations Amending the Exemptions from and Modifications to Hours of Work Provisions Regulations and the Administrative Monetary Penalties (Canada Labour Code) Regulations

Exemptions from and Modifications to Hours of Work Provisions Regulations

1 The adapted version of subsection 169.2(1) of the Act, in paragraph 11(2)(b) of the French version of the Exemptions from and Modifications to Hours of Work Provisions Regulations ^{footnote 1}, is replaced by the following:

Période de repos

169.2 (1) L’employé a droit à une période de repos d’une durée minimale de huit heures consécutives au cours de chaque période de vingt-quatre heures durant laquelle il travaille une période de travail ou un quart de travail.

2 The adapted version of subsection 169.2(1) of the Act, in paragraph 13(2)(b) of the French version of the Regulations, is replaced by the following:

Période de repos

169.2 (1) L’employé a droit, au cours de chaque période de vingt-quatre heures durant laquelle il travaille une période de travail ou un quart de travail, à une période de repos d’une durée minimale de huit heures, dont au moins six heures sont consécutives.

3 The adapted version of subsection 169.2(1) of the Act, in paragraph 15(2)(a) of the French version of the Regulations, is replaced by the following:

Période de repos

4 The adapted version of subsection 169.2(1) of the Act, in paragraph 16(b) of the French version of the Regulations, is replaced by the following:

Période de repos

5 The headings before section 26 and sections 26 and 27 of the Regulations are replaced by the following:

PART 4
Banking Sector

Application

26 This Part applies to persons who are employed in the banking sector.

Commission-paid salespeople

27 Commission-paid salespeople are exempt from the application of sections 169.1, 169.2, 173.01 and 173.1 of the Act.

PART 5
Telecommunications Sector and Broadcasting Sector

Application

28 This Part applies to persons who are employed in the telecommunications sector or the broadcasting sector.

Commission-paid salespeople

29 Commission-paid salespeople are exempt from the application of sections 169.1, 169.2, 173.01 and 173.1 of the Act.

Technicians — installation, maintenance or repair

30 With respect to technicians who install, maintain or repair telecommunications networks or equipment and who are employed in the telecommunications sector, 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.

Producers, technicians and journalists — live broadcast

31 (1) Producers, technicians and journalists who are working in the production of events that are broadcast live and who are employed in the broadcasting sector 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 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.

PART 6
Rail Transportation Sector

Application

32 This Part applies to persons who are employed in the rail transportation sector.

Locomotive engineers, conductors and brakepersons

33 Locomotive engineers, conductors and brakepersons who are employed in road or passenger service are exempt from the application of sections 169.1, 169.2 and 173.1 of the Act.

Yard service employees

34 (1) The following yard service employees are exempt from the application of section 173.1 of the Act:

(a) locomotive engineers;
(b) conductors;
(c) brakepersons;
(d) yardmasters and trainmasters;
(e) assistant yardmasters and assistant trainmasters;
(f) hostlers and locomotive attendants;
(g) yardpersons;
(h) switch tenders; and
(i) car retarder operators.

Modification — subsection 169.1(1) of the Act

(2) With respect to employees referred to in subsection (1), 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 10 minutes, but for each period of less than 15 minutes granted, another period of at least 20 minutes shall be granted. If the employer requires the employee to be at their disposal during the break period, the employee is to be paid for the break.

Baggage handlers

35 Baggage handlers are exempt from the application of section 173.1 of the Act.

Maintenance of way employees

36 (1) Maintenance of way employees 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

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 10 minutes, but for each period of less than 15 minutes granted, another period of at least 20 minutes shall be granted. 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

(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.

Rail traffic controllers

37 (1) Rail traffic controllers are exempt from the application of section 173.1 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

(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.

Railway police officers

38 (1) Railway police officers 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

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 10 minutes, but for each period of less than 15 minutes granted, another period of at least 20 minutes shall be granted. 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

(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.

Signals and communications equipment maintenance employees

39 (1) Signals and communications equipment maintenance employees are exempt from the application of section 173.1 of the Act.

Modification — subsection 169.1(1) of the Act

(2) With respect to employees referred to in subsection (1), 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 10 minutes, but for each period of less than 15 minutes granted, another period of at least 20 minutes shall be granted. If the employer requires the employee to be at their disposal during the break period, the employee is to be paid for the break.

Service employees

40 (1) Service employees who are employed on board passenger trains are exempt from section 173.1 of the Act.

Modification — subsection 169.1(1) of the Act

(2) With respect to employees referred to in subsection (1), subsection 169.1(1) of the Act is modified as follows:

Break

Modification — section 169.2 of the Act

(3) With respect to service employees who are employed on board passenger trains for longer than 24 consecutive hours,

(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 hours, with at least six of those hours being consecutive, 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 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.

Shopcraft and intermodal service employees

41 Shopcraft and intermodal service employees are exempt from the application of section 173.1 of the Act.

6 The Regulations are amended by adding the following after section 41:

PART 7
Air Transportation Sector

Application

42 This Part applies to persons who are employed in the air transportation sector.

Firefighters

43 Firefighters are exempt from the application of section 173.1 of the Act.

Airfield employees

44 Airfield operations specialists, airfield supervisors and airfield operations emergency response specialists are exempt from the application of section 173.1 of the Act.

Emergency response and preparedness

45 Millwrights, electricians, heavy duty mechanics, heating, ventilation and air conditioning (HVAC) specialists and information technology employees engaged in airport emergency response and preparedness operations are exempt from the application of section 173.1 of the Act.

Flight crew and flight instructors

46 Pilots, flight engineers and flight instructors are exempt from the application of sections 169.1 and 173.1 of the Act.

Other on-board crew members

47 (1) Pursers, flight attendants, alternative on-board crew members in business aviation and loadmasters are exempt from the application of section 173.1 of the Act.

Modification — subsection 169.1(1) of the Act

(2) With respect to employees referred to in subsection (1), subsection 169.1(1) of the Act is modified as follows:

Break

Flight dispatchers and flight followers

48 (1) Flight dispatchers and flight followers are exempt from the application of section 173.1 of the Act.

Modification — subsection 169.1(1) of the Act

(2) With respect to employees referred to in subsection (1), subsection 169.1(1) of the Act is modified as follows:

Break

Air traffic controllers and operations specialists

49 Air traffic controllers and air traffic operations specialists are exempt from the application of section 173.1 of the Act.

Flight service specialists

50 (1) Flight service specialists are exempt from the application of section 173.1 of the Act.

Modification — subsection 169.1(1) of the Act

(2) With respect to employees referred to in subsection (1), subsection 169.1(1) of the Act is modified as follows:

Break

Technologists in air navigation services

51 (1) Technologists working in air navigation services are exempt from the application of section 173.1 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

(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.

Administrative Monetary Penalties (Canada Labour Code) Regulations

7 Division 6 of Part 2 of Schedule 2 to the Administrative Monetary Penalties (Canada Labour Code) Regulations ^{footnote 2} is repealed.

Coming into Force

8 (1) Subject to subsections (2) and (3), these Regulations come into force on the day on which they are registered.

(2) Section 5 comes into force on the day that, in the fifth month after the month in which these Regulations are registered, has the same calendar number as the day on which they are registered or, if that fifth month has no day with that number, the last day of that fifth month.

(3) Section 6 comes into force on the day that, in the tenth month after the month in which these Regulations are registered, has the same calendar number as the day on which they are registered or, if that tenth month has no day with that number, the last day of that tenth month.

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 at least 96 hours’ written notice of their work schedules, at least 24 hours’ written notice of shift changes or additions, an unpaid break of at least 30 minutes during every period of 5 consecutive hours of work, and a rest period of at least 8 consecutive hours between work periods or shifts. Included in these amendments to the Code were regulatory authorities allowing the Governor in Council to exempt classes of employees from the application of the new hours of work provisions in cases where they could not be reasonably applied to them or to modify these provisions where their application would be seriously detrimental to the operation of the industrial establishment and/or would be unduly prejudicial to the interests of employees. Final regulations respecting the road transportation, postal and courier, marine (pilotage, marine transportation, long-shoring) and grain (handling/elevators and milling) sectors were published in the Canada Gazette, Part II, on September 1, 2021, and came into force on February 1, 2022. Amendments are required to ensure that necessary exemptions and modifications are in place for the air and rail transportation, banking, and telecommunications and broadcasting sectors.

The operational reality in sectors with continuous operations (i.e. those that generally operate 24 hours a day, 7 days a week such as air and rail transportation) and in sectors with unique scheduling practices (such as banking, telecommunications and broadcasting) is such that scheduling flexibility is required. The Regulations Amending the Exemptions from and Modifications to Hours of Work Provisions Regulations and the Administrative Monetary Penalties (Canada Labour Code) Regulations (the Regulations) provide that flexibility.

Some employers in these sectors have indicated that, in most cases, they are unable to fully meet the new obligations in the Code due to operational variables outside of their control. These variables restrict their ability to plan for staffing levels and provide regular breaks, rest periods, schedules and notice of shift changes ahead of time. For example, mechanical issues can have significant impacts on the air transportation sector, weather patterns can have significant impacts on operations and staffing requirements for the rail transportation sector, and customer demand for services and installation as well as the unpredictability of events, such as breaking news and sporting events, can make staffing needs unpredictable in the telecommunications and broadcasting sector. In the case of banking, while many classes of employees work a standard 40-hour work week, a significant number of employees work on the basis of commission (i.e. investment advisors, mortgage specialists) and set their own hours based on their client and personal needs.

In addition, some industries are subject to other federal rules and regulations regarding hours of service such as the Work/Rest Rules developed pursuant to the Railway Safety Act and the Canadian Aviation Regulations administered by Transport Canada. These mandate safety requirements and place restrictions on hours of service. The Regulations seek to address instances where the hours of service requirements do not align with the new hours of work provisions in the Code, presenting additional challenges for employers to meet both obligations.

Background

New hours of work provisions

New hours of work provisions were added to Part III of the Code through amendments in the Budget Implementation Act, 2017, No. 2 and the Budget Implementation Act, 2018, No. 2 to support employees’ work-life balance. These include the provisions described hereafter.

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 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 labour standards (e.g. payment of wages, protected leaves) for persons employed in federal Crown corporations 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.

Part III of the Code does not apply to the federal public service.

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, with 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 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.

Exceptions for unforeseeable emergencies

The new hours of work provisions are also all subject to an exception for unforeseeable emergencies, which is set out in Part III of the Code. This exception applies in a situation that the employer could not have reasonably foreseen and that could present 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 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.

Modifications and exemptions by regulation

Section 175 of the Code provides authority for the Governor in Council to make regulations modifying the application of hours of work provisions for certain classes of employees who are employed in or in connection with the operation of any industrial establishment if, in the opinion of the Governor in Council, 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.

Phased approach to regulatory development

The COVID-19 pandemic prevented stakeholders in certain sectors (including air and rail transportation, banking, telecommunications and broadcasting) from making submissions following a second round of consultations held in February and March 2020. To address this delay, a phased approach was adopted with respect to the development of regulations concerning exemptions from and modifications to the new hours of work provisions. The first phase of regulatory development included sectors from which extensive stakeholder feedback was received just before the COVID-19 pandemic, namely the road transportation, postal and courier, marine (pilotage, marine transportation and long-shoring) and grain (grain handling/elevators and milling) sectors. The first phase resulted in the publication of the Exemptions from and Modifications to Hours of Work Provisions Regulations which came into force on February 1, 2022. This second phase will result in exemptions from and modifications to the hours of work provisions in the air and rail transportation, banking, and telecommunications and broadcasting sectors. The Interim Measure will continue to apply to those sectors until the exemptions and modifications come into force for those sectors.

Interim Measure

When numerous provisions modernizing labour standards (including the new hours of work provisions) came into force, there were no exemption or modification regulations in place. In the absence of such regulations and in recognition of the unique operational requirements of certain classes of employees in continuous 24/7 operations, the Labour Program issued Interpretations, Policies and Guidelines 101 (the Interim Measure). The intention was to support employers with their transition to the new Code provisions and allow the Labour Program adequate time to engage in regulatory development. This guidance indicates that employers may continue to apply certain hours of work provisions that existed in the Code prior to September 1, 2019, with respect to targeted classes of employees. The Interim Measure no longer applies to Phase 1 sectors (road transportation, courier and postal, marine and grain), but will continue to apply to Phase 2 sectors (air and rail transportation, banking, telecommunications and broadcasting) until such time as the exemptions and modifications for those sectors come into force.

The Interim Measure is not designed to deny employees their right to file a complaint. The Labour Program can still investigate a complaint related to any of these hours of work provisions according to the existing complaints handling policy. Subsequently, an Assurance of Voluntary Compliance (AVC) — a written commitment from the employer to correct identified contraventions by a specified date — can be issued. Labour Program officials can also work with employers to provide education and support measures to achieve compliance until the hours of work exemption and modification regulations come into force. To ensure transparency and nationwide consistency of terminology, National Occupational Classification (NOC) codes were used to identify the classes of employees covered by the Interim Measure.

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 titled Application of sections 173.01 and 173.1 of the Canada Labour Code to on-call and standby employee (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 applies to all workplaces that fall under Part III of the Code, which includes the Phase 1 and Phase 2 sectors.

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 if they include 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 used to deal with unforeseeable labour needs.

Administrative monetary penalties

On January 1, 2021, Part IV (Administrative Monetary Penalties) of the Code came into force to promote compliance with requirements under Part II (Occupational Health and Safety) and Part III (Labour Standards) of the Code. The Administrative Monetary Penalties (Canada Labour Code) Regulations (the AMPs Regulations) designate and classify violations of obligations under Part II and Part III of the Code and related regulations for which an administrative monetary penalty (AMP) may be issued. Only violations specified in the AMPs Regulations can be subject to an AMP.

Designated labour standards violations are listed and classified under Schedule 2 of the AMPs Regulations. When amendments are made to Part III of the Code or one of its associated regulations, Schedule 2 of the AMPs Regulations must be updated to reflect any new requirement that could be violated.

The AMPs Regulations specify the method used to determine the amount of the penalty included in a notice of violation. The baseline penalty amount applicable to a violation varies depending on the category of person or department believed to have committed a violation and the classification of the violation. With respect to obligations under Part III of the Code, each designated violation is classified as either Type A, B, C or D, in order of increasing severity, according to the level of risk and/or the impact of the violation as outlined in Table 2.

Table 2: Classification method for violations under Part III of the Code
Type	Description
A	Related to administrative provisions
B	Related to the calculation and payment of wages
C	Related to leave or other requirements, which could have an impact on the financial security, or health and safety, of an individual or group of individuals
D	Related to the employment and protection of employees who are minors

Objective

The primary objective of the Regulations 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 of providing employees with work-life balance and more predictability in relation to their hours of work.

Description

The Regulations will 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.

As a result of stakeholder feedback during prepublication, some regulatory exemptions and modifications have been changed or added. There are also additional types of modifications used for the sectors in Tables 3 (air transportation), 4 (rail transportation), and 6 (telecommunications and broadcasting). These changes balance the need to provide flexibility to certain sectors with the legislative intent of improving work-life balance and improving scheduling predictability for employees.

It was also determined that some employee classes needed to be added, removed or modified. These refinements were made to provide clarity, capture modern job titles, ensure employees with different exemptions and modifications were not in the same class, or to add new employee classes following comments received during the prepublication comment period. Changes to employee classes in Table 4 were also made to more clearly delineate between those rail transportation sector employees working in road and passenger service from those working in yard service.

A minor change was also made to replace the word “effectue” with “travaille” where appropriate in the French version of the Regulations (including the regulations that apply to Phase 1 sectors) to ensure alignment between both texts.

The Regulations are summarized in the tables below.

Table 3: Air transportation sector
Name of employee class	96 hours’ notice of work schedule	24 hours’ notice of shift change	8-hour rest period	30-minute break
Pilots, flight engineers, and flight instructors	n/a	E	n/a	E
Pursers, flight attendants, alternative on-board crew members in business aviation, and loadmasters	n/a	E	n/a	M2
Flight dispatchers and flight followers	n/a	E	n/a	M2
Air traffic controllers, and air traffic operations specialists	n/a	E	n/a	n/a
Flight service specialists	n/a	E	n/a	M2
Technologists working in air navigation services	n/a	E	M4	n/a
Firefighters	n/a	E	n/a	n/a
Airfield operations specialists, airfield supervisors, and airfield operations emergency response specialists	n/a	E	n/a	n/a
Millwrights, electricians, heavy duty mechanics, heating, ventilation and air condition (HVAC) specialists, and information technology employees engaged in airport emergency response and preparedness operations	n/a	E	n/a	n/a

E:: An exemption is granted for the specified class of employees.
M2:: A modification to the 30-minute break provides that the specified employees are entitled to at least a 30-minute break for every period of five consecutive hours of work, which can be split into periods of at least 15 minutes and provided at any time during the work period or shift.
M4:: A modification to the 8-hour rest between work periods or shifts provides that the specified employees are entitled to a rest period of at least 8 consecutive hours within each 24-hour period in which they work a work period or shift. The unforeseeable emergency exception under subsection 169.2(2) of the Code continues to apply to classes of employees subject to this modification.
n/a:: No modification or exemption for the relevant section of the Code.

Table 4: Rail transportation sector
Name of employee class	96 hours’ notice of work schedule	24 hours’ notice of shift change	8-hour rest period	30-minute break
Locomotive engineers, conductors, brakepersons, yardmasters, assistant yardmasters, trainmasters, assistant trainmasters, hostlers, locomotive attendants, yardpersons, switch tenders and car retarder operators engaged in yard service	n/a	E	n/a	M3
Locomotive engineers, conductors, and brakepersons employed in road or passenger service	n/a	E	E	E
Baggage handlers	n/a	E	n/a	n/a
Maintenance of way employees	n/a	E	M4	M3
Signals and communications equipment maintenance employees	n/a	E	n/a	M3
Shopcraft employees	n/a	E	n/a	n/a
Intermodal service employees	n/a	E	n/a	n/a
Rail traffic controllers	n/a	E	M4	n/a
Railway police officers	n/a	E	M4	M3
Service employees on board passenger trains	n/a	E	n/a	M2
Service employees on board passenger trains for longer than 24 consecutive hours	n/a	E	M1	M2

E:: An exemption is granted for the specified class of employees.
M1:: A modification to the 8-hour rest period between work periods or shifts provides that the specified employees are entitled to a rest period of at least 8 hours, with at least six of those hours being consecutive, during each 24-hour period in which they work a work period or shift. The unforeseeable emergency exception under subsection 169.2(2) of the Code continues to apply to classes of employees subject to this modification.
M2:: A modification to the 30-minute break provides that the specified employees are entitled to at least a 30-minute break for every period of five consecutive hours of work, which can be split into periods of at least 15 minutes and provided at any time during the work period or shift.
M3:: A modification to the 30-minute break provides that the specified employees are entitled to at least a 30-minute break for every period of five consecutive hours of work, and it may be divided into periods of at least 10 minutes, but for each period of less than 15 minutes granted, another period of at least 20 minutes must be granted, which can be provided at any time during the work period or shift.
M4:: A modification to the 8-hour rest between work periods or shifts provides that the specified employees are entitled to a rest period of at least 8 consecutive hours within each 24-hour period in which they work a work period or shift. The unforeseeable emergency exception under subsection 169.2(2) of the Code continues to apply to classes of employees subject to this modification.
n/a:: No modification or exemption for the relevant section of the Code.

Table 5: Banking sector
Name of employee class	96 hours’ notice of work schedule	24 hours’ notice of shift change	8-hour rest period	30-minute break
Commission-paid salespeople employed in the banking sector	E	E	E	E

E:: An exemption is granted for the specified class of employees.

Table 6: Telecommunications and broadcasting sector
Name of employee class	96 hours’ notice of work schedule	24 hours’ notice of shift change	8-hour rest period	30-minute break
Commission-paid salespeople employed in the telecommunications and broadcasting sector	E	E	E	E
Technicians who install, maintain or repair telecommunications networks or equipment and who are employed in the telecommunications sector	n/a	n/a	n/a	M2
Producers, technicians and journalists who are working in the production of events that are broadcast live and who are employed in the broadcasting sector	n/a	E	M4	M2

E:: An exemption is granted for the specified class of employees.
M2:: A modification to the 30-minute break provides that the specified employees are entitled to at least a 30-minute break for every period of five consecutive hours of work, which can be split into periods of at least 15 minutes and provided at any time during the work period or shift.
M4:: A modification to the 8-hour rest between work periods or shifts provides that the specified employees are entitled to a rest period of at least 8 consecutive hours within each 24-hour period in which they work a work period or shift. The unforeseeable emergency exception under subsection 169.2(2) of the Code continues to apply to classes of employees subject to this modification.
n/a:: No modification or exemption for the relevant section of the Code.

The new hours of work provisions of the Code (sections 169.1, 169.2, 173.01, and 173.1) were designated as Type C violations in Schedule 2, Part 1 of the AMPs Regulations. However, when modifications to the hours of work provisions for Phase 1 sectors were created, modifications of the provisions were also designated as Type C violations in Schedule 2, Part 2, Division 6 of the AMPs Regulations. In addition, when the Regulations for Phase 2 sectors were prepublished, it was proposed that modifications in this package would also be designated as Type C violations.

It has been determined that the designation of modifications was unnecessary and needlessly confusing for stakeholders as contraventions of sections 169.1, 169.2, 173.01 and 173.1 of the Code were already designated as violations in Schedule 2, Part 1 of the AMPs Regulations, and the modifications only alter the application of those provisions rather than introduce any new obligations. In this case, violations are of the provision of the Code, not of the modification. Therefore, the correct designation is of the provision of the Code and there was no need to designate the modifications in the prepublished Regulations.

As a result, the designation of modifications that were prepublished for Phase 2 sectors will not be included in the final version of the Regulations. This package will also repeal Division 6 of Part 2 of Schedule 2 of the AMPs Regulations. This will have the effect of repealing the designation of modifications for Phase 1 sectors. This will ensure consistency of treatment between Phase 1 and Phase 2 sectors, and provide more clarity to stakeholders.

For further clarity, violations of sections 169.1 (30-minute break), 169.2 (8-hour rest period), 173.01 (96 hours’ notice of work schedule) and 173.1 (24 hours’ notice of shift change) will still be designated in Schedule 2, Part 1 of the AMPs Regulations. As such, AMPs can still be issued for violations of these provisions, including modifications thereof.

Regulatory development

Consultation

Initial feedback from the first round of consultations — Summer 2019

Six industry-specific technical meetings — telecommunications and broadcasting, air transportation, rail transportation, postal and courier, road transportation and marine (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 over 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, as well as their ability to respond to fluctuating customer demand and other conditions over which they have little or no control (e.g. weather, market pressures, employee absences). They expressed worries 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 were also preoccupied 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, 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 where no alternatives are available to enable 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.

Industry-specific input from both the 2019 and 2020 consultations is addressed hereafter.

Feedback from the second round of consultations — Spring 2020

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, telecommunications and broadcasting, 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. Written submissions were received from 46 stakeholder groups.

Industry-specific feedback

Air transportation

The Labour Program hosted consultation sessions with stakeholders from the air transportation sector in March 2020. In total, 25 stakeholder groups participated in the consultations and 13 groups provided written submissions.

Most employers requested broad exemptions from the hours of work provisions of the Code, including from the 96 hours’ notice of work schedule and 24 hours’ notice of shift change. They argued that the air transportation sector operates 24 hours a day, 7 days a week and requires flexibility to ensure that staffing requirements due to flight delays or other routine and schedule disrupting circumstances can be adequately filled in order to maintain service. Objections were also raised with respect to the 30-minute break provision, with employers arguing that operations cannot be interrupted to provide such breaks, and that certain classes of employees (such as pilots) are required by the Canadian Aviation Regulations to remain on-duty for the duration of their shift for safety reasons. Employer stakeholders operating in remote regions and those conducting charter operations also highlighted the demand-based nature of their schedules and the need for flexibility in order to maintain a Canadian charter air industry and service to remote regions of the country.

The submissions of employee representatives focused on the need to apply a common baseline of employment standards for all workers in the air transportation sector, arguing that the Code should establish a basic standard regardless of occupation or sector. They argued that poor work-life balance has contributed to labour shortages in the air transportation sector, and that many of the hours of work provisions are already applied in full or in part through collective agreements or industry practice. Employee groups have also highlighted the need for the hours of work provisions to apply as broadly as possible.

Rail transportation

The Labour Program hosted a consultation session with stakeholders from the federally regulated rail sector in March 2020. In total, 12 stakeholder groups participated in the consultations, and 8 provided written submissions.

Most employers requested broad exemptions from the hours of work provisions of the Code, arguing that certain new entitlements are already provided for in collective agreements or would otherwise be seriously detrimental to the ability of the rail sector to adequately staff trains and offer the supporting activities required to conduct rail operations. For example, multiple employers requested that employees in the running trades (those who operate locomotives and are responsible for train management while en route) be exempted from the 30-minute break provision, as it would not be practical, from a time standpoint, to perform the action of stopping and securing a train in order for an employee to be provided with a 30-minute break. Employers also requested exemptions from the 24 hours’ notice of shift change requirement for all classes of employees who may need to rapidly address an urgent and/or emergency issue, such as railway police or employees engaged in track and signal maintenance due to weather events or mechanical failures.

The submissions of employee representatives focused on the need to apply a common baseline of employment standards for all workers in the federal jurisdiction, arguing that low compliance with collective agreements and the lack of a strong work-life balance create a need for the hours of work provisions in the Code to be applied as broadly as possible. Employee representatives were amenable to certain exemptions or modifications, such as those necessary to accommodate common practices in the industry like late notice being provided to employees performing seasonal track and signal maintenance. Overall, they argued that the provisions should be applied as broadly as possible.

Banking

Banking sector stakeholders participated in consultation sessions hosted by the Labour Program from May to August 2019. In total, seven organizations participated in the consultations.

Stakeholders expressed concerns with respect to the application of the 30-minute break, the 8-hour rest period, the 96 hours’ notice of work schedule and the 24 hours’ notice of shift change. They expressed concern about a potential lack of flexibility in addressing emerging situations outside of the employer’s control (such as market pressures, or information technology service and repairs). While the stakeholders understood that emergency exceptions exist, they expressed concern that these exceptions may not provide the flexibility they need. Should the emergency exceptions not apply in a given situation, an employer’s inability to address the situation could have serious impacts on the organization and its clients, both nationally and internationally.

Telecommunications and broadcasting

The Labour Program held consultation sessions with stakeholders in the telecommunications and broadcasting sectors in March 2020. In total, 11 stakeholders participated in the consultation session, and 7 written submissions were received.

Several employers in the telecommunications sector requested broad exemptions based on concerns that new hours of work provisions would require significant operational adjustments and would have a significant negative impact on the essential services (i.e. Internet and telecommunications services) they provide to Canadians and the economy. Employers were concerned that, due to the limited number of skilled employees and the technical nature of on-site installations and repairs, finding replacement and/or backup employees would become even more difficult under the new Code requirements. They also expressed concern that the new provisions would not offer the high level of flexibility required to ensure that their services are continuously available to meet the needs of Canadians.

Employers in the broadcasting sector requested exemptions for journalists from the 24 hours’ notice of shift change, 8-hour rest period and 30-minute break provisions on the basis that these employees need to provide news coverage of breaking events quickly and employers do not always have the required staff or ability to grant 8 hours of rest between each period of work in these circumstances.

The Labour Program received several submissions from unions in this sector stating that many collective agreements already offer similar or greater rights than the new provisions. These submissions also suggested that there is already enough flexibility in the industry to allow for adjustments to the new provisions without the need for exemptions or modifications.

Feedback from on-call workers

Over the course of the 2020 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 maintains that the Notice adequately addresses issues regarding the application of the new provisions to on-call and standby employees.

Prepublication in the Canada Gazette, Part I — December 2021

The proposed Regulations were prepublished in Part I of the Canada Gazette on December 25, 2021, for a 60-day comment period. Comments were received through the Canada Gazette’s new online commenting feature and by email.

In response to requests from stakeholders, and due to the low number of submissions initially received, an informal extension was provided to stakeholders until March 9, 2022. A further extension was granted upon request by certain stakeholders until March 23, 2022. One additional submission was received after the deadline, for a total of 28 submissions.

Some stakeholders who submitted comments by email did not provide permission to the Labour Program to publish their comments on the Canada Gazette using the new online commenting feature. However, the substance of those comments is provided hereafter.

Industry-specific comments

Air transportation

The Labour Program received 10 submissions from the air transportation sector (3 from employers, 6 from employee groups, and one from an individual).

Employers were generally supportive of the proposed exemptions. However, they requested additional exemptions in order to maintain the flexibility they say is needed to operate in a 24/7 industry. One employer stated that the proposed Regulations would result in the need for increased hiring and training to cover for breaks and have more employees available on short notice. However, they added that there might not be enough work to justify this increase in hiring, especially in remote areas.

All employer stakeholders in the air transportation sector noted that collective bargaining agreements have been negotiated with employee representatives in order to account for operational needs in the sector. One of these employers added that fatigue management systems for duty and rest periods have been implemented in accordance with Transport Canada’s Canadian Aviation Regulations and suggested that the lack of exemptions would disrupt these arrangements. Two airlines also noted the increased costs and burdens that the air transportation sector is facing due to the COVID-19 pandemic.

Employee groups generally opposed the granting of new exemptions and argued that employers did not provide sufficient evidence to justify the granting of additional exemptions or modifications. They added that employers already have on-call and standby staff to account for unforeseen situations. These groups added that a broad granting of exemptions would go against the intent of the Code, and that the new hours of work provisions are important to maintain work-life balance and are also key in the management and reduction of fatigue.

Airlines requested further exemptions from the 24 hours’ notice of shift changes for aircraft mechanics, aircraft line technicians, technical operations and maintenance personnel. Airlines and an individual also requested that aircraft maintenance engineers be exempted from the 24 hours’ notice of shift changes. It was determined that an exemption was not required for any of these employees as they are often entitled to more than 24 hours’ notice of shift changes through collective agreements. As a result, it is not possible to make a determination that it is unreasonable for employers to apply the provision to these employees. One airline also requested that employers be exempted from the need to apply the 24 hours’ notice of shift change provision to customer service agents. There was insufficient evidence to demonstrate that this employee class needed an exemption.

One union group supported the proposed exemption for flight attendants from the 24-hour notice of shift changes, acknowledging that this kind of notice is not feasible due to the operational nature of the sector. However, this group urged employers to provide employees with notice of shift changes as soon as possible. A different union group opposed exemptions from the 24 hours’ notice of shift changes in the air transportation sector, while another union opposed exemptions of any kind.

Airlines made a number of exemption requests related to the 30-minute break provision. One airline requested that pilots, flight attendants, flight crew schedulers and flight dispatchers be exempted from the 30-minute break provision. Another airline requested flexibility from the strict application of the 30-minute break provision to pilots, flight attendants, maintenance personnel, technical operations and flight dispatchers. An individual also requested that aircraft maintenance engineers be exempted from the 30-minute break provision of the Code.

Employee representatives had mixed responses to modifications of the 30-minute break provision in the regulatory proposal. One union representing pilots supported the modification to the 30-minute break for their members. However, other unions preferred that the Code’s 30-minute break for pilots, flight engineers, alternative crew members, flight instructors, pursers, flight attendants, and loadmasters apply without modification. A union also took issue with the grouping of pilots, flight engineers, alternative crew members, flight instructors, pursers, flight attendants, and loadmasters in one employee class. They stated that these occupations experience significantly different working conditions.

It was determined that due to the dynamic nature of their duties, flight attendants, pursers, alternative on-board crew members in business aviation, and loadmasters cannot always take breaks mid-flight, and must take breaks between flights and/or when it is safe to do so. While it is not always possible to take breaks on a prescriptive schedule, with enough flexibility it is possible for flight attendants, pursers, alternative on-board crew members in business aviation, and loadmasters to have some form of a break during their shift. Therefore, the regulatory modification to the 30-minute break provision will be maintained for this group of employees so that they can take breaks between flights, or during flights if practical. A modification in this case, rather than a full exemption, will ensure that this group’s need for breaks are balanced with the sector’s need for flexibility. The 30-minute break provision of the Code also allows employers to require their employees to be at their disposal during the break period. However, in that case the employee must be paid for the break.

The breaks of flight crews are already regulated by the Canadian Aviation Regulations (CARs). The CARs define a flight crew member as a crew member assigned to act as pilot or flight engineer of an aircraft during flight time. As it would be challenging for stakeholders to comply with the Code’s break provision and the break provisions in the CARs, the Regulations will exempt pilots, flight engineers, and flight instructors from the 30-minute break provision. Despite this exemption, the CARs will still entitle pilots and flight engineers to nutrition breaks and the potential for controlled rest while on the flight deck.

This change also means that the employee class of pilots, flight engineers, alternative crew members, flight instructors, pursers, flight attendants, and loadmasters will be split into two groups. One group will consist of pilots, flight engineers, and flight instructors. The other group will consist of pursers, flight attendants, alternative on-board crew members in business aviation and loadmasters. Please note that the job title of “alternative crew members” has been replaced by “alternative on-board crew members in business aviation” to provide stakeholders with more certainty about the application of these Regulations.

It was determined that an exemption from the 30-minute break was not required for flight crew schedulers as there was insufficient evidence to demonstrate how the break provision could not be reasonably applied to this employee class. In addition, some flight crew schedulers already appear to receive breaks through their collective agreements that exceed the Code provision. The modification to the 30-minute break period will be kept for flight dispatchers because it was determined that these employees cannot take breaks while at their desk during busy times, but can take breaks informally throughout their shift. An exemption from, or modification to, the 30-minute break period will not be applied to aircraft maintenance engineers, maintenance personnel and technical operations employees because the collective agreements of these employees tend to require breaks that are similar to the Code provision.

One airline also suggested that airline pilots, flight attendants, flight dispatchers, maintenance personnel and technical operations should be exempt from the provision allowing employees to refuse overtime to carry out family responsibilities. Exemptions from, or modifications to, the limited right to refuse overtime in order to carry out family responsibilities will not be provided. This entitlement is limited to responsibilities related to the health or care of any family member, or the education of any family member under 18 years of age. Employees are also required to take reasonable steps to carry out their family responsibility by other means, before they can refuse overtime work. This provision is also subject to the exception for unforeseeable emergencies. Due to the narrowly prescribed nature of this entitlement, no exemptions or modifications to this provision are being considered at this time.

An employer requested exemptions to the 30-minute break for air traffic operations specialists, flight service specialists and technologists. It was determined that exemptions were not required for air traffic operations specialists or technologists because they are already entitled to breaks in their collective agreements which meet and exceed the Code provision. However, it was determined that flight service specialists should be subject to a modified 30-minute break provision in light of the key role they play in ensuring the safe functioning of aviation in Canada. The same stakeholder also asked for exemptions from the 24 hours’ notice of shift changes for air traffic controllers, air traffic operations specialists, flight service specialists and technologists. It was determined that an exemption would be granted regarding these employees because it is not reasonable to apply the Code provision to these employees as they are required to support Canada’s aviation system and the operation of that system is highly unpredictable. Lastly, this stakeholder requested an exemption from the application of the 8-hour rest period to technologists who are called in from standby. Following analysis of this request, it was determined that a modification requiring technologists to receive at least 8 hours of rest in a 24-hour period would ensure that technologists get sufficient rest without having serious detrimental impacts on the functioning of the industrial establishment.

An employer expressed concern with the Government’s decision to convey the application of the 24 hours’ notice of shift change, and the 96 hours’ notice of schedules to employees who are on call or on standby through government notice. They preferred that the matter be addressed in regulation to provide more legally binding clarity. However, the Labour Program maintains that the Notice provides workplaces with sufficient flexibility regarding the use of on-call and standby scheduling arrangements.

One union group requested an increase in the required notice period for a schedule change from 24 to 48 hours. This group also requested that the Government establish a requirement for two 15-minute breaks during a shift (i.e. one in the first 4 hours and one in the last 4 hours) in addition to a 30-minute lunch break. Another union group requested a prohibition on shifts longer than 12 hours and a mandatory 2 days off for employees after the completion of a rotation of shifts. This employee group also suggested that the Code should prohibit employers from inadequate staffing as a routine business practice. These requests are beyond the scope of this regulatory package.

Rail transportation

The Labour Program received seven submissions from the rail transportation sector (four from employers, two from employee groups, and one from an individual).

In their submissions, employers and an employer association requested further exemptions from the hours of work provisions. They argued that the continuous nature of operations in the rail sector, which operates on a 24/7 basis, requires flexibility to ensure the safety and security of passengers and employees. They add that unforeseen situations, such as emergencies and inclement weather, can cause delays that require staff to be on-hand or come into work when they have already finished a shift. Employers stated that breaks and rest periods have already been negotiated with employee representatives through their collective bargaining agreements and take into account operational needs.

A union argued that the rationale provided by employers regarding operational needs and unforeseeable circumstances could be overcome with increased staffing and the existing exceptions provided by the Code for emergency situations. They further stated that the hours of work provisions are important in maintaining safe operations by alleviating the mental and physical toll associated with the workplace. The union concluded that past collective bargaining demonstrated that employers are able to provide superior hours of work rules when required, and would therefore be able to implement changes made to the Code. A labour organization mentioned that these new provisions could help address labour shortages in the rail transportation sector as they would make the work more appealing.

Employers and an employer association stated that some employee classes are unable to interrupt their work and take a 30-minute break and requested additional exemptions. An individual also commented that it is very hard for engine conductors to take a break on a train, as they cannot just stop the train anywhere for a break. Employers requested exemptions from the application of the 30-minute break to railway police officers, and rail traffic controllers. One employer also requested that the proposed modifications to the 30-minute break be replaced by full exemptions as most collective agreements provide for paid breaks. Other employers in the rail sector told the Labour Program that many employees already receive a 20-minute paid break through their collective agreements, which would make the incorporation of a 30-minute unpaid break, or breaks split into periods of 15 minutes difficult. Another employer requested that certain unionized employees with roles in yard service should be exempted from the 30-minute break provision of the Code. An employer group added that if the requested exemptions from the 30-minute break provision could not be provided, modifications may be an alternative.

Following analysis, certain changes were made to the application of the 30-minute break provision in the rail transportation sector. A modification to the application of the 30-minute break period to locomotive engineers, conductors, brakepersons, yardmasters, assistant yardmasters, trainmasters, assistant trainmasters, hostlers, locomotive attendants, yardpersons, switch tenders and car retarder operators engaged in yard service has been added. Furthermore, it was determined that because railway police officers ensure the safety of passengers, employees, and rail property some flexibility regarding 30-minute breaks is required. Therefore, a modification to the application of the 30-minute break to railway police officers was added. An exemption or modification of the application of the 30-minute break to rail traffic controllers was not granted as this group already receives 20- to 30-minute breaks in their collective agreements. Compared to some other employees in the rail transportation industry, it is also easier for rail traffic controllers to remain available to work during their breaks.

In response to the concern that it is difficult to incorporate a 30-minute unpaid break, or breaks split into periods of 15 minutes when employees are already entitled to a 20-minute paid break in their collective agreements, the initially proposed modification of the 30-minute break has been altered for certain employees in rail transportation. Specified employees will therefore be entitled to at least a 30-minute break for every period of five consecutive hours of work, which may be split into periods of at least 10 minutes; however, for each period of less than 15 minutes granted, another period of at least 20 minutes must be granted. This will give employers the flexibility to continue providing the existing 20-minute paid break in addition to another break of at least 10 minutes. It will also ensure that if employees are granted a break of less than 15 minutes, they also receive an additional break of at least 20 minutes. This modification of the 30-minute break provision will apply to locomotive engineers, conductors, brakepersons, yardmasters, assistant yardmasters, trainmasters, assistant trainmasters, hostlers, locomotive attendants, yardpersons, switch tenders and car retarder operators engaged in yard service. It will also apply to maintenance of way employees, signals and communications equipment maintenance employees, and railway police officers.

One union group opposed the modification to the 30-minute break period for service employees on board passenger trains. However, this modification will be maintained as requiring employees in this class to take regularly scheduled breaks would disrupt on-board services. A modification provides flexibility while still providing employees in this class with breaks by allowing the break to be split into periods of at least 15 minutes that can be provided at any time during the work period of shift. The modification of the 30-minute break will not be changed for service employees on board passenger trains like it has been for other employees in rail transportation as these employees are not typically entitled to 20-minute paid breaks in their collective agreements.

A number of requests were also made by stakeholders regarding the 8-hour rest period. Employers requested that railway police officers, maintenance of way employees, signals and communications employees, and rail traffic controllers be exempted from the application of the 8-hour rest period.

After analysis, it was determined that the application of the 8-hour rest period to maintenance of way employees, rail traffic controllers, and railway police officers should be modified such that these employees are entitled to a rest period of 8 consecutive hours within each 24-hour period in which they work a work period or shift in order to ensure proper operation of tracks while still providing rest to these employees. This modification is also being made in recognition that these employees may work multiple shifts during a work day. However, because 8 hours of rest between periods of duty are already provided for in the collective agreements of signals and communications equipment maintenance employees, the 8-hour rest period provision will not be modified.

One employer requested that an exemption or modification to the 8-hour rest period be provided for those employees that are governed by a collective agreement that addresses periods of rest between shifts or expressly excludes the application of the provision. Unlike the 96 hours’ notice of work schedules provision, the 8-hour rest provision cannot be negated due to the presence of a collective agreement that already addresses said provision. In this case, exemptions can only be made if the provisions cannot reasonably be applied to a class of employees.

One union group opposed the proposed modification of the 8-hour rest period for service employees on board passenger trains for longer than 24 hours. The proposed modification would have entitled these employees to a rest period of at least 6 consecutive hours within each 24-hour period in which they work a work period or shift. However, it has been determined that while these employees are only entitled to 6 hours of rest in a 24-hour period in their collective agreements and must be available to work during rest, employees in this class are often still able to obtain at least 8 hours total rest in a 24-hour period. Therefore, in the final Regulations, a different regulatory modification entitles these employees to 8 hours of rest, 6 of which must be consecutive, in a 24-hour period in which they work a work period or shift. This will ensure that a sufficient number of service employees are available on trains while employees are able to get more rest.

One employer requested an exemption for service attendants working on board passenger trains from the application of the 24 hours’ notice of shift changes. It was determined that this exemption was required because employers are required to staff a minimum number of service employees on trains. If they are unable to properly staff trains, those trains cannot operate. Therefore, to deal with any changes to train schedules with less than 24 hours’ notice, an exemption from the 24 hours’ notice of shift changes has been granted.

A union group opposed what they viewed as too many exemptions from the 24 hours’ notice of shift changes in the rail transportation sector. However, due to the unpredictability of train schedules, it was determined that applying the 24 hours’ notice of shift changes to many employees in this sector would not be reasonable.

Employer stakeholders indicated that the groupings of employee classes in Table 4 of the Regulatory Impact Analysis Statement in Part I of the Canada Gazette were not clear. They stated that similar employee classes seemed to be receiving different exemptions and modifications. They requested clarification on how to apply the provisions to these employee classes. This was addressed by more clearly delineating between those classes of employees in road and passenger service versus those in yard service in Table 4.

One employer also requested that all of the exemptions provided with regard to locomotive engineers, conductors, and brakepersons engaged in road or passenger service should be extended to the employees included in yard service. It was determined that these employees in yard service required a modification to the 30-minute break provision because these employees ensure that locomotives are switched, stored, and moved to the proper tracks, and are vital in the efficient movement of trains. Prescribing 30-minute break periods every five hours could be seriously detrimental to this industrial establishment because of train delays and changes to scheduled arrivals. However, it was determined that there was insufficient evidence to demonstrate that these yard service employees required an exemption from the 8-hour rest period provision of the Code. These employees work at a fixed location, are provided with rest between shifts under their collective agreements, and tend to work regular shifts.

An employer and employer association suggested that some of the job titles used in the employee classes were outmoded and could be replaced with more modern job titles. One employer noted that the references to yardpersons, yardmasters and assistant yardmasters may be outdated. The employer argued that these job titles are no longer used by some railways in Canada and added that the majority of duties performed by these classifications are now encompassed within the trainmaster and assistant trainmaster classification. They added that hostlers may be an outdated job title. An employer group agreed that the hostler occupation title is no longer used by all railways and some have changed this occupation title to locomotive attendant. As a result of these comments, the job titles of trainmasters, assistant trainmasters, and locomotive attendants have been added to the grouping of employees in yard service. The occupation titles of hostler, yardperson, yardmaster and assistant yardmaster will remain in case any employers still use these titles. The job title locomotive fireperson has been removed because this job title is no longer used in the rail transportation sector. For added clarity, a separate row for baggage handlers has also been created in Table 4. However, the treatment of baggage handlers has not changed from the proposed Regulations.

One employer asked for clarification regarding the application of the 8-hour rest period to employees who start their shift early or work beyond the end of their shift. Section 169.2 of the Code states that employees are entitled to and shall be granted 8 consecutive hours of rest between work periods or shifts. If an employee is asked to stay late beyond a regularly scheduled shift, they will still be entitled to 8 consecutive hours of rest between the end of the extended shift and the beginning of their next shift. If an employee is asked to start a work period or shift earlier than normal, the employee still must have received at least 8 consecutive hours of rest before the early start of the shift. This assumes that the employee in question is not subject to any of the exemptions and modifications outlined in the Regulations. The 8-hour rest period may also be pre-empted if the employee is required to deal with an unforeseeable emergency as described in subsection 169.2(2) of the Code.

Several stakeholders expressed concern over the existence of multiple regulations dealing with hours of work in the rail transportation sector. They indicated that this could lead to overlap or confusion and become burdensome. One employer stated that the proposed Regulations did not take into account the Railway Running-Trades Employees Hours of Work Regulations. This employer believed that the proposed Regulations and the Railway Running-Trades Employees Hours of Work Regulations should be merged into a single regulation dealing with hours of work. Furthermore, employers expressed concern that incoming rules from Transport Canada on fatigue management systems already address rest periods, and might overlap and conflict with the hours of work provisions. An employer stated that the coming into force of the hours of work provisions should be delayed until these new rules from Transport Canada are completed. This employer also requested that exemptions be granted to railways once these Transport Canada rules come into effect.

A union group stated that they initially had concerns that the hours of work provisions would conflict with Transport Canada’s proposed fatigue management system rules, but ultimately did not find any significant overlap or conflict. One employee group also stated that the Transport Canada rules should be revisited to determine their compatibility with the physical and mental well-being of workers. They also noted that it may be useful for the Labour Program to clarify how the Exemptions from and Modifications to Hours of Work Provisions Regulations would interact with the Railway Running-Trades Employees Hours of Work Regulations.

The Railway Running-Trades Employees Hours of Work Regulations apply to specific classes of employees in rail transportation, and provide an exemption from the application of sections 169 (standard hours of work), 171 (maximum hours of work), and 173 (day of rest) of the Code. There is no overlap between the Railway Running-Trades Employees Hours of Work Regulations and the exemptions and modifications that are contained in these Regulations. It would also be inconsistent if exemptions and modifications to the hours of work provisions for the rail transportation sector were to be made in a different set of regulations than all of the other sectors. Therefore, the Government is not considering merging the two sets of regulations at this time.

Telecommunications and broadcasting

The Labour Program received nine submissions from the telecommunications and broadcasting sectors (three from employers, five from employee groups, and one from an anonymous commenter).

Several employers in the telecommunications sector requested more exemptions and modifications based on concerns that the new hours of work provisions would require significant operational adjustments and would have a significant negative impact on the essential services that they provide to Canadians and the economy. Employers were concerned that, due to the limited number of skilled employees and the technical nature of on-site installations and repairs, finding replacements and/or backup employees would become even more difficult under the new Code requirements.

A union group indicated that they were pleased that the potential number of exemptions and modifications in the telecommunications sector had been reduced in the proposed Regulations. This union stated that it was incumbent on employers to manage staffing levels in order to facilitate substantive breaks by employees and to ensure that there are enough on-call employees available to fill in on short notice.

One employer in the telecommunications sector requested an exemption for customer service employees from the 96 hours’ notice of work schedules and the 24 hours’ notice of shift changes due to high call volumes in customer service during critical periods. Another employer requested that certain technicians in the telecommunications sector be exempted from the 24 hours’ notice of shift changes. It was determined that there was insufficient evidence to support the granting of exemptions for customer service employees. It was also determined that employers should not be exempt from the application of the 24 hours’ notice of shift changes with respect to technicians. Some collective agreements for technicians already require more than 24 hours’ notice for certain types of schedule changes.

One employer requested that the 8-hour rest period be modified such that installation and repair workers, computer and software engineers, electrical and electronics engineering technologists and technicians, and information systems and data analysts should receive 8 hours’ rest in a 24-hour period where that employee was on standby and was called into work with less than 8 hours of rest following the end of their previous work shift. When such an employee is called in during standby, the employer asserted that they could be provided with 8 hours of rest, contiguous with the conclusion of their work and prior to their next shift. Another employer requested that certain technicians in telecommunications be exempted from the 8-hour rest period. It was determined that collective agreements demonstrate that employers generally already provide a minimum of 8 hours of rest for these types of employees. As such, there is insufficient evidence to demonstrate that it would be seriously detrimental to the operation of the industrial establishment to ask employers to provide 8 hours’ rest between shifts or work periods to these employees.

In the prepublished Regulations, the application of the 30-minute break to technicians who install telecommunications equipment on customer property was modified such that these employees are entitled to at least a 30-minute break for every period of 5 consecutive hours of work, which can be split into periods of at least 15 minutes and provided at any time during the work period or shift. One employer stated that the modification should be changed to an exemption for certain technicians in telecommunications. From a contrasting perspective, a union group opposed the modification for this employee class and preferred that the 30-minute break provision of the Code apply without modification. In addition, an anonymous commenter also stated that the modification should not be limited to technicians who install telecommunications equipment on customer property. This individual believed that the employee class should include employees whose job is essential in supporting service to the customer more broadly.

The modification of the 30-minute break is maintained in the final Regulations, but expanding the employee class to those whose job is essential to customer service would be too broad. However, it was determined that the employee class should be broadened to technicians who install, maintain, or repair telecommunications networks or equipment rather than technicians who install telecommunications equipment on customer property. Work that is done by technicians off customer property — for example, on their own employer’s property to repair or restore telecommunications services and networks — could be as urgent and time-sensitive as work done on customer property. Some technicians also do installation, maintenance, and repair work, and there is no reason that the break should only be modified for installations.

One union group submitted that the definition of commission-paid salespeople in telecommunications and broadcasting should be limited to employees who work exclusively on a commission basis and set their own hours. It was determined that if these Regulations were to narrow the definition of commission-paid salespeople as requested, an inconsistency with the Broadcasting Industry Commission Salesmen Hours of Work Regulations and the Banking Industry Commission-paid Salespeople Hours of Work Regulations would be created. Neither of those regulations narrow the definition of commission-paid salespeople in the way requested by the stakeholder. The Labour Program acknowledges that there may be a need to re-evaluate how the hours of work provisions apply to all commission-paid salespeople in the future. However, that would require additional consultation and potential amendments to other regulations. Therefore, it was determined that these Regulations would not be the appropriate vehicle for this review.

One employer requested that the Government create regulations to clarify and expand the definition of “threat of serious interference with the ordinary working of the employer’s industrial establishment” as found in subsections 173.01(3) and 173.1(2) of the Code. More specifically, the stakeholder stated that it would be important to explicitly clarify that such a threat of serious interference applies to interference with both employer assets and operations as well as the employer’s customers’ assets and operations for which the employer is responsible.

To learn more about the factors that the Labour Program applies in determining if a serious interference with the ordinary working of the employer’s industrial establishment has occurred, please consult the IPG entitled Serious interference with the operation of the establishment — Exceptions — Canada Labour Code, Part III — Division I — 802-1-IPG-094. IPG-094 seeks to clarify the definition of “serious interference with the ordinary working of the employer’s industrial establishment” as it appears in sections 169.1, 169.2, 173.01, 173.1 and 174.1 of the Code.

It should be noted that the legislation also allows for exceptions to sections 169.1, 169.2, 173.01, 173.1 and 174.1 of the Code should there be a situation which an employer could not have reasonably foreseen and which presents (or could present) an imminent or serious threat of damage to or loss of property. To learn more about the Labour Program’s interpretation of the expression “threat of damage to or loss of property” please see the IPG entitled Threat of damage to or loss of property — Exceptions — Canada Labour Code, Part III — Division I — 802-1-IPG-093.

Employers in the broadcasting sector requested additional exemptions. Such requests cited a need for increased flexibility based on the nature of the work. The main argument from employers is that it is impossible to predict, with any accuracy, the number of staff that they may require on any given day.

Employee groups in the broadcasting sector opposed further exemptions and modifications related to the break and rest provisions. They were generally concerned with maintaining a minimum labour standard to support employees’ health and well-being.

Employers requested an exemption or modification to the 30-minute break for journalists and content production staff. In contrast, two union groups opposed the proposed modification for producers, technicians, and journalists who are working on live broadcast events, including sporting events. One employee group shared that live broadcasts are typically staffed with rotations or a second crew to provide reprieve for on-air staff.

The application of the 30-minute break provision was modified in the prepublished regulatory proposal such that producers, technicians and journalists who are working in the production of events that are broadcast live (including sporting events) are entitled to at least a 30-minute break for every period of 5 consecutive hours of work, which can be split into periods of at least 15 minutes and provided at any time during the work period or shift. It was determined that this modification will be kept due to the operational requirements of producing live events while still giving employees the right to take breaks.

With respect to the 8-hour rest period, one employer requested that journalists and content production staff should be exempt as these employees are required to provide rapid media coverage of breaking new events and that employers do not always have the required staff or the ability to provide 8 hours of rest between each work period under these circumstances. Two union groups took the opposite position and indicated that producers, technicians and journalists who are working in the production of sporting events that are broadcast live should not be exempted from the 8-hour rest provision. They argued that this was unnecessary because existing practices provide enough coverage to balance operational demands against an employee’s need for predictable scheduling, safe and healthy working conditions and adequate rest.

After review, it was determined that the separate employee class for producers, technicians and journalists who are working in the production of sporting events that are broadcast live should be removed. There was insufficient evidence to treat this employee class differently than those producers, technicians and journalists who are working in the production of other events that are broadcast live (e.g. live news). In the regulatory proposal at prepublication, employees involved in the production of live sporting events were to be given a full exemption from the 8-hour rest period whereas other employees involved in the production of live events did not. Live news coverage faces the same pressures as those employees covering sporting events. In addition, the provision of live news coverage, more so than sports, is seen as an essential service for Canadians. Despite the removal of the employee class addressing sporting events, those employees will still be captured under the larger employee class of producers, technicians and journalists who are working in the production of events that are broadcast live and will receive a modified 8-hour rest period.

Employers also requested exemptions from the application of the 24 hours’ notice of shift changes to journalists, producers, technicians, announcers, other broadcasters, film and video camera operators, and other content production staff in radio and television, including events that are broadcast live and sporting events. It was determined that due to operational requirements during live events, producers, technicians and journalists who are working in the production of events that are broadcast live will be exempted from the 24 hours’ notice of shift changes. This is a new exemption that was not included in the prepublication.

One employer in the telecommunications and broadcasting sector asked that the application of the Interim Measure be made permanent. However, exemptions and modifications are being provided in this regulatory package based on whether or not they meet the regulatory authority provided by the Code. The Interim Measure stated that the regulatory process is independent of the Interim Measure and there was no guarantee that the same classes of employees would be the subject of exemptions or modifications in the second phase of the Regulations.

An employer in telecommunications and broadcasting stated that the least prejudicial impact on employees would be to allow employees to choose whether or not to work a new or changed shift regardless of the length of the notice provided to the employee about such a change. The Code gives employees the right to refuse any work period or shift in their schedule that starts within 96 hours from the time that the schedule is provided to them. The Code also prohibits reprisals based on an employees’ decision to refuse such a shift. However, the Code does not have similar provisions for shift changes made with less than 24 hours’ notice. Therefore, such a regulation is outside the scope of this regulatory package.

An employer in telecommunications and broadcasting also requested an exemption from the 30-minute break period, 24 hours’ notice of shift changes, and the 8-hour rest period provision if the employees are governed by a collective agreement. Unlike the 96 hours’ notice of work schedules provision, these provisions are not negated by the presence of a collective agreement that already addresses that provision. In the case of the 30-minute break, 24 hours’ notice of shift changes, and 8-hour rest period, exemptions can only be made if the provisions cannot reasonably be applied to a class of employees.

An employer suggested that the Government should adopt a regulation that stipulates that 24 hours’ written advance notice to an employee that they must remain available to work on a certain day, meets the requirement of section 173.1 (24 hours’ notice of shift changes) of the Code. The Labour Program maintains that the government Notice provides workplaces with sufficient flexibility regarding the use of on-call and standby scheduling arrangements.

One employer argued that it was unclear whether or not the 24 hours’ notice of shift changes applies to overtime hours and requested that a regulation be created which states that the provision only applies to regular hours, not to overtime hours. It was determined that such a regulation is not required and would be beyond the scope of this regulatory package.

Banking

The Labour Program received one submission from an employer group in the banking sector.

This employer group supported the proposed exemption from the new hours of work provisions for commission-paid salespeople, and requested additional exemptions from these provisions for employees whose role meets a job duties and salary test. This stakeholder also supported the proposed 5-month implementation period for this sector. The provisions of the Regulations for the banking sector will come into force 5 months following registration of the Regulations.

Creating a job duties and salary test at this stage of regulatory development would not allow sufficient consultation with stakeholders. In addition, the stakeholder did not provide evidence to demonstrate that the banking industry has the type of continuous operations or unique scheduling practices that would merit additional exemptions or modifications. However, Division I (Hours of Work) of Part III of the Code does not apply in respect of employees who are managers or superintendents, or employees who exercise management functions as per paragraph 167(2)(a) of the Code.

Comments from student interns

An employer group recommended that the scheduling and rest arrangements of student interns be determined by educational institutions and employers rather than be prescribed by the new hours of work provisions. This group argued that the new provisions could have a negative impact on the number of employers who employ interns, interfere with the learning process, and make it more difficult for students to complete their educational pursuits.

The Standards for Work-Integrated Learning Activities Regulations states that the following subsections of Part III of the Code do apply to student interns:

subsection 169.1(1): 30-minute break;
subsection 169.2(1): 8-hour rest period;
subsections 173.01(1), (2) and (5): 96 hours’ notice of work schedule; and
subsection 173.1(1): 24 hours’ notice of shift changes.

As a result, student interns are entitled to 30-minute breaks, 8-hour rest periods, 96 hours’ notice of work schedules, and 24 hours’ notice of shift changes. The various subsections containing exceptions for unforeseen emergencies do not apply to student interns. In other words, an employer cannot postpone or cancel the 30-minute break, interrupt the rest period, or forego the notice period before the start of a work schedule or a shift change to require a student intern to deal with an unforeseen emergency.

The objectives of the Standards for Work-Integrated Learning Activities Regulations are to foster an environment where employers, students and educational institutions can leverage work-integrated learning opportunities more confidently while ensuring that students in work-integrated learning receive certain labour standards protections. The exemption of student interns from the hours of work provisions listed above would unnecessarily limit this group’s access to important entitlements which provide them with scheduling predictability, and allow them to get sufficient breaks, and rest. Student interns are expected to be performing activities mainly for the benefit of their own education, not taking on the same responsibilities as other employees in the workplace.

Other interns that are not classified as student interns are covered under Part III of the Code, and they are treated in the same way as employees for the purposes of all provisions. Should one of these interns be part of a class of employees that are subject to a modification or exemption, the intern would also be subject to that modification or exemption.

General comments

The Labour Program received a number of comments that were not specific to a certain sector.

A labour organization stated that they wished to see the new hours of work provisions applied as broadly as possible. This group also stated that exemptions and modifications should not be provided to address customer demand or to avoid additional costs. The group also asserted that federally regulated employers have faced fewer hours of work regulations than provincially regulated employers, and therefore a period of adjustment to the new rules was likely.

This labour organization also noted that exemptions and modifications that go beyond what is necessary could have disproportionately negative impacts on women, new immigrants, and workers of colour, as they are more likely to work in precarious or non-standard forms of work. They noted that while men outnumber women in many federally regulated sectors, exemptions and modifications may nonetheless disproportionately harm women given that their positions tend to be lower hierarchically in many businesses.

A number of comments were received from individuals. Some individuals expressed a desire to see employee entitlements expanded. For example, one individual wanted to expand the rest period provision from 8 to 10 hours to account for things like commute times. Another individual wanted employers to tie rates of pay to the inflation rate. Both of these requests are beyond the scope of the regulatory package.

Other individuals asserted that employees should be able to waive entitlements when it better suits the employee. Another individual thought that the hours of work provisions should not be changed as some employees need more hours of work and not further regulation of existing hours. This individual suggested instead that the Government should require higher pay, and expanded benefits and vacation entitlements. These requests are also beyond the scope of this regulatory package.

Modern treaty obligations and Indigenous engagement and consultation

No impacts on modern treaties have been identified in relation to the Regulations. However, as many on-reserve Indigenous employers and employees may be impacted by these Regulations, Indigenous partners were invited to participate in the engagement/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 the hours of work provisions.

Instrument choice

Pursuant to section 175 of the Code, the Governor in Council has the authority to make regulations exempting classes of employees from the new hours of work provisions and modifying these provisions for application to certain classes of employees. No other instrument is appropriate to provide for exemptions from and modifications to the Code’s provisions.

Regulatory analysis

This section presents an analysis of the anticipated incremental differences between two scenarios: (1) a baseline scenario that reflects the implementation of the hours of work provisions; and (2) the regulatory scenario in which exemptions from and modifications to the provisions are in place for certain classes of employees. The 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 create negative impacts, such as creating difficulties for continuous operations employers and those with unique scheduling needs to replace employees in critical operations with less than 24 hours’ notice. The Regulations will resolve those issues and provide greater clarity and certainty for both employers and employees in federally regulated workplaces. The impacts of these Regulations 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 Regulations is based primarily on observations and feedback conveyed by employer and employee groups throughout the regulatory development process, including two rounds of stakeholder consultations. This information is supplemented by research undertaken by the Labour Program, including an analysis of existing labour standards and related exemptions as well as research regarding similar provisions in collective agreements (length and frequency of break periods, advance notice of work shifts, etc.).

The impacts of the Regulations have been assessed in qualitative terms. The benefits of the Regulations (such as continued employment due to more viable workplaces and the ability to maintain continuous business operations) and their costs (such as the loss of predictability regarding breaks and rest periods for certain employees) are difficult to measure in quantitative terms.

Affected stakeholders

The Regulations will apply to approximately 513 000 federally regulated employees and their employers in the air and rail transportation, banking and telecommunications and broadcasting sectors, based on the 2015 Federal Jurisdiction Workplace Survey with adjustments to the volumes estimated for November 2021 based on the Survey of Employment, Payrolls and Hours. Compared to the Canadian labour force of 20.6 million, the employees affected represent about 2.8% of the Canadian workforce.

Benefits and costs

Benefits

Benefits to employers

Lower operational costs to business

The Regulations benefit employers by addressing their need to maintain the continuity of business operations through relief from the requirements of the hours of work provisions. Employers with continuous operations and unique scheduling practices 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, customer demand), while also challenging their ability to remain competitive due to the upward pressure on costs. The Regulations 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.

Benefits to employees

Employment security because of increased viability of businesses

Industrial establishments that remain operational offer employees continued employment. Employees would benefit from the higher viability of employers, which is afforded by the regulatory flexibility created by the exemptions and modifications. As the Regulations reduce possible negative impacts of the legislation on employers, employees will benefit from employers not needing to institute cost-saving measures to meet new hours of work requirements that have the potential to cause detriment to the industrial establishment.

Preserved flexibility and predictability

The implementation of the hours of work provisions would impact commission-paid salespeople who set their own hours, making them work prescriptive hours rather than setting their own schedules. In some cases, this could result in a loss of commission income, and would likely have a detrimental impact on their work-life balance. As exemptions are included to address these industry-specific situations, employees will benefit from not having a reduction in flexibility or income.

Additionally, during consultations, some stakeholders stated that they rely on casual and temporary employees to fill last-minute staffing needs to maintain operations. Stakeholders voiced concern that, without exemptions or modifications allowing for flexible scheduling adjustments, there could be an increase in on-call work in order to meet industry needs. By developing a set of clear exemption and modification regulations offering flexibility to meet industry-specific scheduling needs, the Regulations mitigate the risk of employers increasing their reliance on on-call scheduling, thus 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 flexibility and predictability, they may experience a reduction in the work-life balance benefits associated with the Code’s new hours of work provisions. Exemptions to the 24 hours’ notice of shift change 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 and rest can be taken, as modifications allow for the postponement of breaks to another time during the work period or shift and allows rest periods to be provided within a 24-hour period in which an employee works a work period or shift. As the Regulations 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 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 regulatory changes.

Costs to employers

Human resource scheduling costs

Minor costs may be associated with adjusting business operations as they relate to human resources and systems management to develop employee schedules based on the criteria and to adapt breaks and rest periods accordingly. 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.

Costs to the Government of Canada

Communications

Costs associated with communication activities and the development of operational guidance 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 Regulations.

Stakeholder comments on the cost-benefit analysis during prepublication

Prepublication of the proposed Regulations drew comments from stakeholders related to potential costs and reduction of benefits. In general, employers expressed concerns about potential costs of the legislative provisions if exemptions and modifications were not granted, while employee groups cautioned that exemptions and modifications would reduce the benefits that the new hours of work provisions provide to employees.

Air transportation

In the air transportation sector, several employers argued that the new hours of work provisions would create new costs unless certain exemptions and modifications were included. One employer in the air transportation sector noted that the application of certain provisions to air traffic controllers, air traffic operations specialists, flight service specialists and technologists would require an immediate increase in staffing levels or decreased services to customers. They argued that a decrease in service could increase fuel costs for their customers and have adverse impacts on passengers. They added that increased staffing levels would have cost and training requirements, which would be higher for isolated posts. The stakeholder added that their ability to train new employees was already at capacity. They also concluded that increased staffing levels would be inefficient as there may not be sufficient work to occupy additional employees. An analysis determined that certain exemptions or modifications would be applied to the occupations of concern identified by this stakeholder. However, exemptions and modifications were deemed unnecessary where the entitlements of a collective agreement already exceeded the Code provision. As a result, the costs of the new provisions projected by this stakeholder are not expected to be incurred.

Two other employers in the air transportation sector expressed concern that the hours of work provisions would lead to frequent flight schedule disruptions and inconveniences to travellers. They worried that this could result in employers needing to absorb the costs of potential delays and cancellations. They noted that these delays and cancellations could trigger compensation costs as a result of the Air Passenger Protection Regulations. These two employers asked for more flexibility regarding the 30-minute break period for pilots, flight attendants, flight dispatchers, flight crew schedulers and technical operations. These employers also requested exemptions from the application of the 24-hour notice of shift changes to technical operations and maintenance personnel, pilots, flight attendants, customer service agents, baggage handlers, and airport employees responsible for emergency response and preparedness.

Unions in the air transportation sector had a different perspective. One union who represents pilots argued that the 30-minute break would not impose undue hardship on employers. They contended that if the break provision requires employers to staff additional pilots, it would be required of all airlines and would therefore not create any competitive advantages. A union that represents flight attendants wrote that the modified break provision would help their members get some form of break and ensure payment should they need to work through their shift. Another union was concerned that exemptions and modifications could have a physical and mental toll on employees.

Ultimately, it was determined that a number of exemptions or modifications would be applied to the occupations in air transportation for which employers made requests, thereby reducing the cost impacts of the provisions. In the final Regulations, pilots are exempted from the application of the 30-minute break. In addition, the 30-minute break provision was modified for flight attendants and flight dispatchers such that the 30-minute break could be split into two 15-minute periods and provided at any time during the work period or shift. This modification was included in the prepublished Regulations and is being maintained in the final Regulations. The added flexibility of this modification should significantly reduce costs associated with this provision. With regard to flight crew schedulers, it was determined that there was a lack of evidence to demonstrate that the 30-minute break provision could not be reasonably applied. In addition, the flight crew schedulers of another air transportation company already receive breaks (albeit with some exceptions) that exceed the provisions of the Code. With regard to the 24-hour notice of shift changes, pilots, flight attendants, and employees responsible for emergency response and preparedness were already provided an exemption in the prepublished Regulations, which will be maintained in the final Regulations. There was a lack of evidence to demonstrate that technicians, customer service agents and baggage handlers required an exemption from the 24-hour notice provision. In addition, another air transportation employer already entitles these types of employees to notice of shift changes that meet or exceed the Code provision.

Rail transportation

Employers and an employer group in the rail transportation sector requested additional exemptions and modifications. However, they did not directly comment on the potential costs and benefits of the provisions or these Regulations. A union in the rail transportation sector noted that the erosion of breaks and rest periods increases the mental and physical toll on employees and urged the Labour Program to resist granting additional flexibility in the sector.

Banking

There were no comments regarding costs and benefits from stakeholders in the banking sector.

Broadcasting and telecommunications

In broadcasting and telecommunications, employers expressed concern related to the cost of implementing the new legislative provisions. Employers worried that complying with the provisions could lead to increased costs and overstaffing. One employer suggested the costs may be prohibitive, while another employer suggested the costs may be exacerbated in rural and remote communities. An employer also expressed concern about their ability to train the replacement employees needed to meet the new provisions of the Code while continuing to provide the same level of service to customers. One employer asserted that these costs may also impact employees, as employers may seek to reduce operating expenses in other areas, such as benefit and compensation programs. This employer noted that requiring 24 hours’ notice of shift changes and additions could also have negative impacts on the earning potential of employees. Another employer worried that a lack of exemptions to the 8-hour rest period would require new 24/7 scheduling, which they argued would be disruptive to employee work-life balance.

Meanwhile, unions representing employees in the telecommunications and broadcasting sectors noted that unmodified breaks and 8-hour rest periods benefit the mental and physical well-being of employees.

The Regulations recognize that the broadcasting sector needs some flexibility from the application of the new hours of work provisions when it comes to the production of live events. Producers, technicians and journalists who are working in the production of events that are broadcast live will be exempt from the application of the 24 hours’ notice of shift changes. The 8-hour rest period will also be modified such that these employees are entitled to 8 hours’ consecutive rest in any 24-hour period in which they work, rather than 8 consecutive hours of rest between each work period or shift. Lastly, the application of the 30-minute break will be modified for these employees such that the break can be split into two 15-minute periods and provided at any time during the work period or shift. Additional flexibility is also required in the telecommunications sector where the application of the 30-minute break period to technicians who install, maintain, or repair telecommunications networks or equipment will be modified such that they are entitled to at least a 30-minute break for every period of 5 consecutive hours of work, which can be split into periods of at least 15 minutes and provided at any time during the work period or shift. The added flexibility of modifications and exemptions should significantly reduce any new costs associated with the legislative provisions projected by employers in the telecommunications and broadcasting sectors.

Employer groups

The costs identified by employers and employer associations were related to the implementation of the legislative provisions rather than the Regulations, which create exemptions and modifications to those provisions. Even so, several exemptions, modifications and clarifications have been added to the Regulations that will have the impact of providing relief to employers from the cost impacts of the provisions. In some cases, where exemptions or modifications requested by stakeholders were not granted, it was determined that employers must already provide similar entitlements to their employees through collective agreements or to comply with other rules and regulations. As a result, few of the costs identified by employers associated with the provisions should be incurred. Moreover, these Regulations provide certainty to all stakeholders on the application of the legislative provisions.

Labour organizations

Comments from union groups on the regulatory analysis emphasized that additional exemptions and modifications could reduce benefits to employees. Commenting about the federally regulated private sector in general, one labour organization argued that a period of adjustment to the new provisions was likely and that new costs related to the provisions would be minimal. It added that the provisions could benefit employers in sectors experiencing chronic labour shortages by making the work more appealing, and that exemptions and modifications are not a benefit to employees even when interpreted as contributing to business viability and should be kept to a minimum. This labour organization concluded by opposing exemptions and modifications that are primarily based on addressing customer demand or avoiding additional costs.

The Labour Program was sensitive to the concerns from both employer and employee stakeholders. Correspondingly, these Regulations sought a careful balance between the intent of improving work-life balance and scheduling predictability with the need to provide some operational flexibility in sectors with continuous 24/7 operations or unique scheduling arrangements. Where possible, modifications rather than full exemptions were granted to preserve the ability of employees to take breaks and rest periods at appropriate times.

Small business lens

The Regulations will provide relief to small businesses in the form of cost reduction, by creating exemptions and modifications 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 (such as unsustainable costs to cover employee overlap or an inability to maintain operations due to low staffing numbers). In some cases, this would result in negative impacts on the working conditions of employees as small businesses would be unable to replace absent staff in work settings where team size is already small. Any costs associated with the Regulations are related to the need to adjust certain internal human resources and scheduling systems and are expected to be minimal. It is therefore expected that small businesses will generally benefit from the introduction of the Regulations.

One-for-one rule

The one-for-one rule does not apply, as there is no incremental change in administrative burden on businesses and no regulatory titles are repealed or introduced.

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 subsection 24(2) of the Canada Labour Standards Regulations published in the Canada Gazette, Part II, on June 12, 2019. An additional set of consequential amendments to address record-keeping requirements supporting compliance and enforcement of the new hours of work provisions, which include an amendment to subsection 24(2) of the Canada Labour Standards Regulations were published in the Canada Gazette, Part II, on March 16, 2022, and came into force on June 2, 2022.

Regulatory cooperation and alignment

Transport Canada is responsible for various regulations that stipulate hours of service rules for certain sectors, including the air and rail (running trades) transportation sectors. Whereas Transport Canada rules and regulations are generally aimed at ensuring public safety, hours of work provisions under the Code are intended to ensure employee work-life balance and well-being. Employers must comply with both the Code and Transport Canada rules and regulations. Throughout the development of the Regulations, the Labour Program has consulted Transport Canada officials responsible for administering regulations pertaining to work rest rules and safe staffing assignments for the rail running trades and the air transportation sector. The Regulations have resolved minor misalignments identified between requirements under the Code and rules and regulations administered by Transport Canada.

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 engaged in family responsibilities. As the Regulations provide exemptions from 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 air and rail transportation, telecommunications and broadcasting sectors are predominately male, as has traditionally been the case throughout the history of these sectors. For this reason, these Regulations will proportionally have more of an impact, which is expected to be positive, on men. Women will also experience a positive impact, albeit of a lower proportion.

These Regulations have two key benefits for employees:

employment security (as workplaces will have the flexibility to meet industry needs and remain competitive); and
the preservation of key elements of the new hours of work 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.

The 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 granted.

The decreased benefits will have a proportionally higher impact on men in the workforce, but individually this may have a higher impact on women. A recent Statistics Canada publication demonstrated that while men were more likely to contribute to household duties during the COVID-19 pandemic, women still manage the majority of household duties.^{footnote 3} 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

Air transportation

Employees such as pilots, flight engineers, alternative on-board crew members in business aviation, flight instructors, pursers, flight attendants, loadmasters, flight followers and dispatchers are responsible for operating aircraft, providing services to aircraft passengers, providing real-time information to flight crews and managing cargo and weight distribution in-flight. Aircraft schedules are highly dynamic in Canada, with approximately 25% of scheduled flights being delayed or cancelled due to weather conditions, maintenance requirements, or other factors (such as the volume of airport activity). Alternative mechanisms for filling last-minute shift vacancies are not practical or sufficient for these classes of employees. Reserve (on-call) employees are available in some cases, but operators still rely on voluntary short-notice shift changes to staff a significant number of remaining vacancies. Overstaffing would be cost-prohibitive and impractical due to limited space availability on aircraft. Under the Air Passenger Protection Regulations, flight cancellations or delays due to lack of staff may have significant financial consequences for airlines. Provisions concerning the 24 hours’ notice of shift change cannot reasonably be applied to these classes of employees as they are required for the aircraft to operate. Furthermore, the existing exception in the Code for unforeseeable emergencies generally does not apply to routine schedule modifications and shift cancellations due to weather, technical issues, and illness. In addition, due to the dynamic nature of their duties, unless relief staff are available, employees in these classes cannot take breaks mid-flight or mid-shift, and must take breaks between flights and/or when safe to do so. While it is not possible for pursers, flight attendants, alternative on-board crew members in business aviation, loadmasters, flight followers and flight dispatchers to take breaks on a prescriptive schedule, with enough flexibility it is possible for them to have some form of a break during their shift. Therefore, a regulatory modification to the 30-minute break provision has been created to ensure flexibility for these employees to take breaks between flights, or during flights if practical (e.g. if relief personnel are available). A modification in this case, rather than a full exemption, ensures that employees’ need for work-life balance and rest are balanced with the sectoral need for flexibility.

However, the breaks of flight crews are already regulated by the Canadian Aviation Regulations (CARs). As it would not be reasonable for employers to apply the Code’s break provision and the break provisions in the CARs, the Regulations will exempt pilots, flight engineers, and flight instructors from the 30-minute break provision.

Air navigation services are particularly impacted by the unpredictability of the sector as they are highly dependent on other actors. When something unexpected happens in air transportation, an airline may be able to adjust their flying schedules, or an airport could reduce traffic in certain terminals. However, air navigation service employees must always be present to support the safe functioning of Canada’s aviation system. As a result, it is not reasonable to apply the 24 hours’ notice of shift change to air traffic controllers, air traffic operations specialists, flight service specialists, and technologists who are working in air navigation services and they must be exempted. It was also determined that the 30-minute break should be modified for flight service specialists due to the key role that they play in ensuring the continued safe functioning of Canada’s aviation system. To ensure that there is no interruption in air navigation services, the application of the 8-hour rest period to technologists working in air navigation services was modified such that these employees are entitled to at least 8 hours of consecutive rest in a 24-hour period in which they work a work period or shift. Absent these modifications, the provisions could be seriously detrimental to the industrial establishment.

Employees such as airfield operations specialists, airfield supervisors, airfield operations emergency response specialists, firefighters, millwrights, electricians, heavy-duty mechanics, HVAC specialists, and information technology employees are responsible for airspace management, wildlife control, runway operations, passenger and crew safety and emergency response, as well as maintenance and control of the systems (IT, electrical, HVAC, machines, etc.) that enable airport operations. These employees must be present in order for an airport to function safely and effectively. As part of routine operations, they may need to be brought in or have the timing of their shift changed with limited notice. When this occurs, scheduling mechanisms such as leaving the vacancy unfilled or using on-call staff would not be feasible in this sector. A lack of flexibility could also lead to a significant increase in the number of employees classified as on-call, to the detriment of their work-life balance. The inability to make required schedule changes or replace absent employees could pose significant risks to safety and to the normal operation of the industrial establishment. The requirement to provide 24 hours’ notice of shift changes cannot reasonably be applied to these employees as they are essential in ensuring the safety of individuals and emergency preparedness at airports, and ongoing repairs and maintenance.

As the majority of events impacting the timing of flights and staffing needs in this industry are unpredictable and outside of the employer’s control, flexibility in terms of scheduling, rest and breaks is required. Without such flexibility, there would be significant negative impacts on flight operations, resulting in the grounding of flights, and the inability of the employer to provide vital customer service and ensure safety for crews and passengers.

Rail transportation

Relevant employees in this sector are responsible for various duties — the operation of trains, the maintenance of trains, communications and signals equipment, the maintenance of rail infrastructure, the direction of traffic, the maintenance of safety, the handling of cargo and customer service — all of which are critically important to the operations of the rail industry. In this highly interconnected sector, scheduling is unpredictable and based on factors outside of the employer’s control (such as weather, customer demands, and other regulatory frameworks). To address this challenge, the rail industry, through decades of collective bargaining has developed a specialized scheduling system.

Maintenance of way, signals and communications equipment employees must respond to unexpected breakdowns of the equipment and infrastructure needed to keep rail operations running. This often results in unplanned changes to work schedules. In those cases, this type of unexpected work cannot be planned. In the case of both unplanned and planned maintenance work, any employee absences must be filled on an urgent basis, as work cannot be delayed or postponed. In order to maintain safe operations, employers require flexibility for scheduling, breaks and rest periods.

Additionally, as trains run continuously, often in remote locations, it is impractical to have a rigid set of rules with respect to when breaks and rest periods can be taken. On average, a train will take 90 minutes to fully stop and have individual car brakes properly and manually applied, and then subsequently released each time. This type of stop would be required to give breaks to any on-board members of the running trades, as all members of a rail operation team are required for safe operations. Additionally, in some cases, compensation for running trades is based on a pay-for-mileage model, meaning that in those cases a break would extend the employee’s duty without increasing pay. With these factors in mind, it would be impractical to stop a train in order to provide rest periods and breaks for on-board employees in the way prescribed by the legislation. Where possible, a modification, rather than a full exemption to the 30-minute break provision, has been granted to ensure that employees’ need for work-life balance and rest are balanced with the sectoral need for flexibility.

Customer service staff are responsible for ensuring passenger safety and providing services aboard passenger trains, from serving food to providing cleaning services. Throughout their shift, these employees are focused on addressing passenger needs and maintaining the safety of passengers. Due to space concerns as well as concerns around cost and the availability of trained personnel, there is a limited number of customer service personnel on board each train, particularly for extended trips spanning multiple days. With this in mind, as well as the unpredictable nature of customer demand, it is often impractical for these employees to take breaks and rest periods in the way prescribed by the Code. In order to address unique situations while meeting customers’ needs and maintaining safe operations, employers require flexibility around how the 30-minute break and 8-hour rest provisions are applied to this class of employees.

As presented above, the rail industry is unique and operates continuously, and has specific safety and customer service requirements. These exemptions and modifications were developed to create flexibility in cases where the new Code provisions cannot be reasonably applied to relevant classes of employees, would be unduly prejudicial to the interest of employees and/or where they pose a serious detriment to the operations of the industrial establishment.

Banking

Some employees in this sector (e.g. financial advisors, mortgage specialists, investment specialists) work on commission-based compensation models. They control their own schedules and are compensated based on sales, not the number of hours worked. They are highly mobile, working most of the time away from the employer’s premises and supervision. As they are not tied to their employer’s hours of operation or subject to scheduling from the employer, they make themselves available when their customers need them. This means that they routinely work long and irregular hours (oftentimes in the evenings and on weekends). Additionally, the Banking Industry Commission-paid Salespeople Hours of Work Regulations already include exemptions related to the Code’s hours of work provisions for these employees (such as exemptions from maximum hours and overtime). Any prescriptive hours of work requirements would limit their wages and work-life balance and therefore cannot reasonably be applied to this class of employees.

Telecommunications and broadcasting

Employees in this industry fall under two key categories: (1) those working as commission-paid employees; and (2) those working wage or salary work. Commission-paid employees set their own schedules and work on a commission-based compensation model. These employees are already exempt from existing hours of work provisions under the Code, such as maximum hours and overtime provisions through the Broadcasting Industry Commission Salesmen Hours of Work Regulations. Employees in this class arrange their schedules in an autonomous manner, taking into account their client and personal scheduling needs. Therefore, the prescriptive nature of the new provisions would diminish employees’ ability to manage their work-life flexibility. Being a salesperson is a competitive high demand client-driven profession; prescriptive scheduling would not allow employees to adjust their schedules to their individual client needs, which could result in an overall loss of sales and income. Such outcomes are contrary to the intent of the new provisions of the Code. Any prescriptive hours of work requirements would limit their wages and work-life balance and therefore cannot reasonably be applied to this class of employees.

For employees working as journalists, technicians and/or producers of live broadcast events, flexibility is required. Due to the “just-in-time” nature of the work, notice of shift changes, breaks and rest periods cannot be provided in a prescribed way, as production needs are unpredictable and often cannot be paused. In the case of live broadcasting, not only is production time-sensitive but it is also unpredictable as the employer cannot predict things such as the length of sporting events or the timing of breaking news. Overall, there would be a direct impact on the quality of live broadcasts should breaks and rest periods have a mandated schedule. This would be seriously detrimental to the operation of the industrial establishment. It is also not reasonable to apply the 24 hours’ notice of shift change provision to these employees. The Regulations include modifications for breaks and rest periods and an exemption to notice of shift changes.

It was also determined that flexibility is required for employees working as technicians who install, maintain, or repair telecommunications networks or equipment. These employees need flexibility, since they cannot always take a break when they are with clients and may also be called upon to work on urgent network and connection issues. Applying the 30-minute break provision to these employees without modification would be seriously detrimental to the industrial establishment. As such, the break provision was modified for these employees.

Implementation, compliance and enforcement, and service standards

Implementation

The classes of employees to whom the exemptions or modifications apply are easily identifiable (on the basis of occupation), which should prevent potential confusion and misapplication. When the new hours of work provisions were added to the Code, outreach and education activities were undertaken with stakeholders to inform them of the changes. Also, the Labour Program published several IPGs to support employers and employees in understanding the new hours of work provisions of the Code. As the Regulations come into force, additional outreach and education activities will be carried out. There will be opportunities for stakeholders to ask questions and seek clarification from the Labour Program in advance of the coming-into-force dates including at meetings of the Labour Standards Advisory Committee. Technical briefings may also be provided. Stakeholders will be informed by Labour Program communications of the publication of these Regulations and be given notice when the Regulations come into force for the different sectors. Additional IPGs can be developed as needed to ensure that stakeholders understand their rights and responsibilities under the new regulatory framework. Government of Canada web pages that discuss hours of work will also be updated.

Compliance and enforcement

Compliance with the Code’s hours of work provisions, as modified by these Regulations, will be achieved using a variety of approaches along a compliance continuum. This may include educating and counselling employers on their obligations, seeking an Assurance of Voluntary Compliance from the employer, or issuing a compliance order to cease the contravention and take steps to prevent its reoccurrence. To address more serious or repeated violations, an AMP under Part IV of the Code may be issued. To learn more about how AMPs may be issued, please consult the IPG entitled Administrative Monetary Penalties — Canada Labour Code, Part IV — IPG-106.

Coming into force

The provisions of the Regulations have a delayed coming into force of five months following registration for the rail transportation, banking, telecommunications and broadcasting sectors. The provisions in the Regulations for the air transportation sector will come into force 10 months following registration. The repeal of Division 6 of Part 2 of Schedule 2 of the AMPs Regulations will occur immediately upon registration.

Contact

Annic Plouffe
Acting Executive 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: EDSCDMTConsultationNTModernesConsultationModernLSWDESDC@labour-travail.gc.ca

Regulations Amending the Exemptions from and Modifications to Hours of Work Provisions Regulations and the Administrative Monetary Penalties (Canada Labour Code) Regulations: SOR/2023-180

Regulations Amending the Exemptions from and Modifications to Hours of Work Provisions Regulations and the Administrative Monetary Penalties (Canada Labour Code) Regulations

Exemptions from and Modifications to Hours of Work Provisions Regulations

PART 4 Banking Sector

PART 5 Telecommunications Sector and Broadcasting Sector

PART 6 Rail Transportation Sector

PART 7 Air Transportation Sector

Administrative Monetary Penalties (Canada Labour Code) Regulations

Coming into Force

REGULATORY IMPACT ANALYSIS STATEMENT

Issues

Background

New hours of work provisions

Application of the new hours of work provisions

Exceptions and exemptions

Exceptions for unforeseeable emergencies

Modifications and exemptions by regulation

Phased approach to regulatory development

Interim Measure

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

Administrative monetary penalties

Objective

Description

Regulatory development

Consultation

Initial feedback from the first round of consultations — Summer 2019

Feedback from the second round of consultations — Spring 2020

Industry-specific feedback

Air transportation

Rail transportation

Banking

Telecommunications and broadcasting

Feedback from on-call workers

Prepublication in the Canada Gazette, Part I — December 2021

Industry-specific comments

Comments from student interns

General comments

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

Stakeholder comments on the cost-benefit analysis during prepublication

Air transportation

Rail transportation

Banking

Broadcasting and telecommunications

Employer groups

Labour organizations

Small business lens

One-for-one rule

Regulatory cooperation and alignment

Strategic environmental assessment

Gender-based analysis plus (GBA+)

Rationale

Air transportation

Rail transportation

Banking

Telecommunications and broadcasting

Implementation, compliance and enforcement, and service standards

Implementation

Compliance and enforcement

Coming into force

PART 4
Banking Sector

PART 5
Telecommunications Sector and Broadcasting Sector

PART 6
Rail Transportation Sector

PART 7
Air Transportation Sector