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3. Federal Labour Standards Review Commission

Archived - Discussion Paper on the Review of Labour Standards in the Canada Labour Code

I. Responding to the Evolving Workplace

A. Hours of Work

2. Meal Breaks and Rest Periods

a) Meal Breaks

Commission Recommendations:

• A meal break of 30 minutes should be provided for every period of five hours of work. Meal breaks would be unpaid, unless the employee is not permitted to leave the work site.
• Meal breaks could be postponed in the event of an emergency, or in accordance with a proposal approved through the workplace-level consultations. Exemptions and special rules could also be established by regulation. (R. 7.58)

The federal jurisdiction is the only jurisdiction in Canada that does not provide for a daily rest or meal break. In most provinces, employees are entitled to a meal break of at least one-half hour after each period of five consecutive hours of work. Meal breaks are generally unpaid. However, legislation in several jurisdictions specifies that employees must be paid during the break if they are not permitted to leave their work station or must be available to perform work.

In light of these Canadian legislative standards, many would say that it is reasonable to amend Part III to provide employees with the right to a 30-minute meal break for each period of five consecutive hours of work, which must be paid only if they are not permitted to leave their work station or must be available for work.

One question is whether there should be exceptions to the meal break requirement in order to provide for some flexibility and, if so, what these should be. Some possible exceptions to the meal break requirements, based on the legislation in other jurisdictions, include cases where:

• An accident or an unforeseeable or unpreventable circumstance occurs, or urgent work is necessary;
• It would be “unreasonable” for the employee to take a meal break;
• The employee works alone, and in circumstances where taking a meal break would be impracticable;
• The employer obtains a permit from the appropriate authority;
• Different provisions are agreed to in a collective agreement;
• Different provisions are agreed to in an employment contract; or
• A variance is prescribed by regulation (for instance, workers in certain occupations may be excluded from minimum rest periods).

For discussion:

• Would it be appropriate to provide employees with the right to an unpaid, 30‑minute meal break for each period of five consecutive hours of work? Should this break be paid if employees must be available to perform work and/or are not permitted to leave their work stations?
• Should there be any exceptions from meal break requirements? If so, what should these be?

b) Daily and Weekly Rest

Commission Recommendations:

• The minimum weekly rest period should be increased from 24 to 32 consecutive hours. Employees should also be entitled to eight hours of rest without pay in every 24 hours.
• Rest periods could be postponed in an emergency, or in accordance with a proposal approved through the workplace-level consultations. Exemptions and special rules could also be established by regulation. (R. 7.58)

Under Part III, employees are generally entitled to at least one full day of rest (24 hours) per week. This must be provided on a Sunday, whenever practicable. During an averaging period, however, the rest period can be disregarded altogether. The weekly rest period also does not apply to designated professionals, managers, employees who exercise management functions, or superintendents. Part III does not provide for minimum daily rest periods.

In establishing minimum rest periods, it is important to balance the need to protect employees from unhealthy or dangerous working hours against the need for flexibility in scheduling. A number of Canadian jurisdictions provide for 32 to 48 hours of rest per week, while preserving some measure of flexibility for employers and employees. For instance, depending on the jurisdiction, a variance can be permitted by the Director of Labour Standards or allowed where hours are staggered over a period of more than one week.

Furthermore, employers are often required to provide a minimum daily rest period –and are in some cases subject to maximum daily working hours—with some room for flexibility. For instance, in Alberta, an employee’s working hours must be confined within a 12-hour period each day, unless a variance is authorized by the Director of Employment Standards or there is an emergency. In Ontario, employees cannot generally be required to work more than eight hours per day. They are also entitled to at least 11 consecutive hours free from performing work in each day, except in exceptional circumstances (e.g., in the event of an emergency). In Newfoundland and Labrador, employees are entitled to eight consecutive hours of rest per day, except in an emergency. In the Northwest Territories and Nunavut, employees cannot be required to work more than 10 hours per day, except where authorized by government permit or in an emergency.

Providing a minimum weekly rest period of 32 hours and a minimum daily rest period of eight hours could help to class Part III with the labour standards of other Canadian jurisdictions. However, it has been argued that there should be some flexibility to disregard or vary rest periods in certain circumstances. Based on the legislation in other Canadian jurisdictions, this could include, for example: an emergency; a permit from the appropriate authority; where work is performed under a modified work schedule or averaging arrangement; where a written agreement between the employer and employee provides otherwise; or if the employee is a manager or a designated professional (e.g., a lawyer).

For discussion:

• Should the weekly rest period be increased? If so, how much weekly rest should be provided (e.g. 32 hours)?
• Should employees be provided with a minimum daily rest period and if so, how long should it be (e.g. eight hours)?
• What (if any) exceptions or variations to the rest period requirements would be appropriate?

3. Shiftwork

Commission recommendations:

Except in cases of unforeseeable circumstances beyond the control of the employer, employees should be entitled to advance notice of shift changes of at least 24 hours (or such other period as may be specified in a collective agreement or in a proposal approved through the workplace-level consultations). An employer should be prohibited from firing or otherwise penalizing an employee who, as a result of the lack of notice, cannot perform work for all or part of the shift hours, including overtime hours added to a previously scheduled shift. (R. 7.48)

A requirement to provide at least 24 hours’ advance notice of a shift change would help provide some measure of predictability for shift workers. This is particularly important for workers with irregular shift schedules who, according to a growing number of studies, are at a heightened risk for health problems and job strain. An advance notice requirement would provide shift workers with time to make the necessary arrangements in their personal lives (e.g., make plans for child or elder care) to reflect the change in working hours. On the other hand, a 24-hour notice requirement may be unrealistic in some situations, such as where multiple employees are ill and unable to work. To reflect this, the Commission recommended that employers be exempt from the advance notice requirement in the event of unforeseeable circumstances beyond their control.

Two provinces, Saskatchewan and Alberta, require employers to provide advance notice of shift changes. In Saskatchewan, the employer must notify employees of the time when each shift begins and ends and give at least one week’s advance notice of any change in the work schedule. In Alberta, an employer cannot require an employee to change from one shift to another without providing the employee with at least 24 hours’ written notice and at least eight hours of rest between shifts.

It is possible that an advance notice requirement may be unreasonable for certain occupations or enterprises, in which case there could be some exceptions. For instance, in Saskatchewan, the Director of Labour Standards may issue a permit authorizing a variance from the advance notice rules, where satisfied that the application of the rules would be unsuitable in the circumstances. As well, the requirement to provide advance notice does not apply in the event of an emergency, defined as any sudden or unusual occurrence or condition that could not, by the exercise of reasonable judgment, have been foreseen by the employer.

Another issue is whether employees should be provided with the right to a minimum period of rest between shifts. In several Canadian jurisdictions, employees are generally entitled to eight hours of rest between shifts, which must be provided in addition to any minimum daily rest periods.

For discussion:

• Would it be reasonable to require an employer to provide an employee with at least 24 hours advance notice of a shift change, except where there are unforeseeable circumstances beyond the control of the employer? If so, should there be any other exceptions to the right to advance notice of shift changes?
• How should an advance notice requirement be enforced?
• Should employees be entitled to a minimum rest period of eight hours between shifts?

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Date Modified:

2012-02-15