Exemptions from and Modifications to Hours of Work Provisions Regulation
Rob Dombowsky, Industry Advisor, Human Resources & Labour
Introduction
The Federal Government has finalized the Exemptions from and Modifications to Hours of Work Provisions Regulations for the federally regulated road transportation, postal and courier, marine, and grain sectors. The final regulations will come into effect on February 1, 2022. Once in effect, our industry will be affected by these exemptions. Additionally, as of February 1, 2022, the Interpretation, Policies and Guidelines (IPG) 101 will no longer apply to the road transportation, postal, and courier sectors. This bulletin does not apply to provincially regulated employers.
Background
Amendments to Part III of the Canada Labour 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, they addressed sections 169.1, 169.2, 173.01, and 173.1 of the Code (See CLC summary below).
Employers in the road transportation, postal and courier sectors had indicated that they would not be able to meet these obligations and sought an exemption. Our industry is subject to variables beyond our control, which restricts our ability to plan for staffing levels and provide breaks, rest periods, schedules, and notice of shift changes ahead of time.
Additionally, other regulations, such as the Commercial Vehicle Drivers Hours of Service Regulations mandate safety requirements and place restrictions on hours of service already.
The operational reality in sectors such as the road transportation, postal, and courier sectors is of a 24/7 continuous nature and is such that the flexibility in the Exemptions from and Modifications to Hours of Work Provisions Regulations is required.
Canada Labor Code – Summary
The sections of the Code that are subject to exemptions are 169.1, 169.2, 173.01, and 173.1. The sections listed below are the modifications to the code as posted in the Exemptions from and Modifications to Hours of Work Provisions Regulations, as published in the Canada Gazette in August of this year. [i]
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 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.
The Exemptions
The table below summarizes the exemptions for certain classes of employees working in the federally regulated road transportation, postal, and courier industries. Unionized employers may have negotiated other terms as part of the collective bargaining agreement, which may supersede these exemptions. Please consult with your Union directly.
Table 1: Exceptions to Hours of Work by Employee classification
Section/ Employee ClassHighway/City Operators Goods [i]Highway/City Mail/ Parcels[ii]Motor Coach[iii]Armored Car Crew MembersWarehouse Workers[iv]DispatchersMechanicsManagers and certain other Professions[v]Other Workers169.1 – 30 Minute break
Administrative Monetary Penalties
Accompanying the changes to the legislation, Administrative Monetary Penalties (AMP) exist as a tool for ensuring employers are in compliance. AMPs are considered a last resort, as education is preferential. AMPs in these cases could range from $1000 for an individual, $3000 for a small business, and $12,000 for a large business.[1]
Effective January 1, 2022 employers are required to keep records related to exceptions to sections 169.1, 169.2, 173.01, and 173.1 for non-exempt employees. Records could consist of emails, paper documents, or possibly notes in the supervisor’s logbook or combinations of all the above. Simply having a conversation is not sufficient and could result in an AMP.
Employers are required to retain and be prepared to provide supporting records pertaining to unforeseeable emergencies that an employee had to deal with and as a result of which the employer:
could not provide the employee with 24 hours’ notice of a change to their shift;
had to either postpone or cancel the employee’s 30-minute break;
had to require the employee to work additional hours, which resulted in them having a rest period of fewer than 8 hours; [2]
Every refusal to work made by an employee due to not receiving 96 hours’ written notice of their work schedule.[3]
It is recommended that records for exempt employees are treated to the same higher standard, regardless of the exemption. This will eliminate confusion by setting one standard for all employees.
How can AMTA Help?
AMTA can provide members with one-on-one guidance on how to interpret this change. If you have any questions, please contact AMTA and our experienced staff will be happy to help. For your HR, Labour, Safety, and Compliance questions, please email Workplace Support Services at wss@amta.ca or contact Rob Dombowsky at AMTA (403) 214-3439.
Case Studies
Case Study 1 (30-minute break)
Driver X works as a highway driver, delivering goods from Alberta to the port in Vancouver. She is not subject to the 30-minute break requirement, as its’ not always safe or convenient to pull over. It would be reasonable for the driver to self-manage their route and take a break as they see fit within the federal hours of service regulations.
Case Study 2 (24 hours’ notice/Manager Exemptions)
Employee X is an office worker, who works an alternating part-time schedule, in Purchasing and Logistics. She saw a news article on the hours of work online and thinks that because she works for a federally regulated employer, she’s may not get 24 hours’ notice of shift change. This could be problematic for her as she has childcare to arrange and is on a very tight budget. Her manager corrected her right away and explained that she doesn’t work in an exempt position, and she would still need 24-hour notice unless it was a serious emergency. He also explains as her manager, he is exempt and could be told to be at work on short notice.
Case Study 3 (96 hours)
Employee X is a city driver working for a parcel delivery company, FEXED. With Christmas coming, the company is extremely busy. The employee’s schedule is subject to change based on workload, so he needs to see his schedule so he can confirm his personal commitments. He receives his schedule by mail on Saturday morning, showing he is scheduled for Tuesday at 6:00 AM. The employee did not receive his schedule, 96 hours before the first shift. As such, he could refuse to work the scheduled shift. The scheduling manager needs to schedule the process so that the employees receive their schedules four days prior.
Case Study 4 (eight hours)
Under Canada’s Commercial Vehicle Drivers Hours of Service Regulations, a single driver could split their daily off-duty time requirement by using their sleeper berth to avoid a single, 8-hour consecutive break. This can be done in two separate periods of sleeper berth time that together total 10 hours and each is longer than two hours while satisfying additional hours of service requirements related to drive and shift time limits.[4] As a result, the Hours of Work set forth in the Code would conflict with the Hours-of-Service legislation. If the worker is a Federally regulated highway/city driver for goods or motor coach driver, they would be exempt from the new labour rules and would need to comply with the Federal Hours of Service rules even if it means a less than 8-hour break between shifts.
[1] Administrative Monetary Penalties (Canada Labour Code) Regulations (SOR/2020-260), Schedule III (29 Nov 2021) https://laws-lois.justice.gc.ca/eng/regulations/SOR-2020-260/page-4.html#h-1278389
[2] Canada Gazette, Part I, Volume 155, Number 26: Regulations Amending Certain Regulations Made Under the Canada Labour Code (26 June 2021) https://gazette.gc.ca/rp-pr/p1/2021/2021-06-26/html/reg1-eng.html
[3] Canada Gazette refers to Student Interns and not Employee in this point. The author has included the broader population as a recommendation.
[4] Government of Canada. 2021. “Splitting of Daily Off-duty Time – Single Driver.” In Commercial Vehicle Drivers Hours of Service Regulations. SOR/2005-313. Accessed December 9th, 2021, https://laws-lois.justice.gc.ca/eng/regulations/SOR-2005-313/FullText.html
[i] Highway motor vehicle operators and city motor vehicle operators in the road transportation sector who operate a motor vehicle for the transport of goods with a gross combination weight rating over 4 500 kg
[ii] Highway motor vehicle operators and city motor vehicle operators in the postal and courier sector who operate a motor vehicle for the transport of mail or parcels
[iii] Motorcoach operators who are not employed by a municipal or provincial transit authority
[iv] Warehouse workers who handle, move, load and unload materials by hand or by means of material handling equipment, shippers, and receivers
[v] Excluded employees from Division I pursuant to subsection 167(2) of the Canada Labour Code – Part III – 802-1/815-1-IPG-049 (March 2017) https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies/excluded-employees.html
[i] Exemptions from and Modifications to Hours of Work Provisions Regulations: SOR/2021-200 (11 Aug 2021) https://gazette.gc.ca/rp-pr/p2/2021/2021-09-01/html/sor-dors200-eng.html