Section 18 of the Employment Standards Act, 2000 ("ESA") provides that employees must be given at least 11 consecutive hours of rest between shifts. Three recent decisions outline different scenarios that may exempt employers from this requirement:
- (1) where the employer qualifies for an exemption laid out in s. 19 of the ESA;
- (2) where a collective agreement provides protections superior to those of the ESA; and
- (3) where the employer's entire industry is explicitly exempt under the ESA Regulations.
The decision in Unifor Local 938 & Union Gas Ltd. 117 CLAS 129 ("Unifor") involved an employer's implementation of a new overtime staffing policy. In order to ensure compliance with s. 18 of the ESA, Union Gas began to assign temporary rather than full-time workers to any required overtime hours. At arbitration, Unifor Local 938 (the "Union") argued that the collective agreement with Union Gas mandated that overtime be worked by "full-time and continuous part-time employees – excluding part-time employees working less than 24 hours per week." Union Gas argued that s. 18 of the ESA precluded it from offering overtime to employees if doing so would leave them with less than 11 consecutive hours of off-time. Bringing in temporary workers, explained Union Gas, was simply a means of ensuring compliance with s. 18 of the ESA.
The arbitrator decided in favor of the Union and found that the employer's situation fell squarely within one of the enumerated exceptions to s. 18, outlined in s. 19:
An employer may require an employee to work more than the maximum ... period that is required to be free from performing work under section 18 only as follows:
- To deal with an emergency.
- If something unforeseen occurs, to ensure the continued delivery of essential public services, regardless of who delivers those services.
- If something unforeseen occurs, to ensure that continuous processes or seasonal operations are not interrupted.
- To carry out urgent repair work to the employer's plant or equipment.
The arbitrator found the relevant exception was s. 19(4) of the ESA, since the work was urgent repair work. The arbitrator found that the employer could have employed workers who otherwise would not be permitted to work any more hours in accordance with s. 18 in those circumstances. Since the parties' collective agreement required all overtime to be "worked by and equalized between employees", and given that the employer was not bound by s. 18, the employer was obligated to offer overtime to employees first.
In another labour arbitration award, Labatt Breweries Ontario Canada & SEIU ("Labatt"), a temporary tradesman was assigned to perform a repair and the union alleged that the collective agreement required the employer to offer the job as overtime to a full-time employee first. The employer relied on s. 18 of the ESA in its defence to the grievance, saying that if a full-time employee had completed the job, they would have less than 11 consecutive hours of rest, in contravention of s. 18.
The arbitrator decided in favour of the Union, finding that the collective agreement provided a greater benefit than the ESA, rendering the ESA inapplicable in the circumstances. The collective bargaining agreement in question contained provisions requiring that all qualified unionized employees be canvassed whenever overtime work was necessary. Further, the agreement gave all unionized employees the freedom to reject such work without negative recourse from their employer. Thus, the arbitrator decided, where there is no danger of coercion, employees could elect to forego the protections offered by s. 18 of the ESA in negotiating better terms under the collective agreement.
The 11-hour rest period requirement defined in s. 18 of the ESA can be challenging to apply, particularly in the context of a collective agreement. Hiring outside workers into a unionized workplace on the basis of the rest requirements of the ESA could be found to contravene a collective agreement, particularly where rights to overtime work exist. Keeping these points in mind, employers should consider whether any of the exemptions to hours of work are met, or whether their collective agreement provides a greater benefit than the ESA, exempting its application. Collective agreement language, industry-specific regulations, and statutorily defined exceptions to ESA provisions are some of the relevant considerations that must be considered when making staffing decisions taking account of section 18 of the ESA.
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