The Employment Standards Act is the law that contains basic rules about employing people and working. Both employees and employers have rights and
responsibilities under the Act.
Does the Act cover all employees in Ontario?
Most employees are covered by the provincial legislation. However, employees working in industries that fall under Federal jurisdiction, such as, Post office, Banks, Railways, Radio stations, Airlines, Television stations etc. are not covered.
If you are member of the trade union and your contract of employment is governed by the collective agreement, you may not be covered by the Act.
If you are currently employed with the company, you may be able to file a claim with a request that your name not be disclosed. The Act protects you when you are exercising your rights under it.
Section 23(1) of the Act states:
An employer shall pay employees at least the prescribed minimum wage.
The present minimum wage rates apply from March 31, 2010 and are as follows:
Liquor Servers $8.90
Hunting & Fishing Guides
Less than 5 hours $51.25
5 Hours or more $102.50
Homeworkers (both adults & students) $11.28
Section 23(2) of the Act states:
If an employer provides room or board to an employee, the prescribed amount with respect to room or board shall be deemed to have been paid by the employer to the employee as wages.
This section clarifies that if the employer provides room or board to the employee, the employer can charge the employee for room or board. The amount that the employer may charge is as follows:
Non-Private (Domestic Workers Only) $0.00
Each Meal $2.55
Weekly Maximum $53.55
Rooms & Meals (Weekly)
With Private Room $85.25
With Non-Private $69.40
Non-Private (Domestic Workers Only) $53.55
Harvest Workers Only (Weekly Housing)
Serviced Housing $99.35
Unserviced Housing $73.70
If the employer pays more than minimum wage, the rates for room or board can also increase from the above but with the written authorization of the employee. However, the increase in Room or Board charges cannot exceed the limit placed above. In other words, the employer must pay the employee no less than as stipulated above.
Section 23(3) of the Act states:
Compliance with this Part shall be determined on a pay period basis.
This section clarifies that the employer’s compliance would be based on a pay period that is, how he pays whether weekly, bi-weekly, semi-monthly etc.
Section 23(4) of the Act states:
Without restricting the generality of subsection (3), if the prescribed minimum wage applicable with respect to an employee is expressed as an hourly rate, the employer shall not be considered to have complied with this Part unless,
(a) when the amount of regular wages paid to the employee in the pay period is divided by the number of hours he or she worked in the pay period, other than hours for which the employee was entitled to receive overtime pay or premium pay, the quotient is at least equal to the prescribed minimum wage; and
(b) when the amount of overtime pay and premium pay paid to the employee in the pay period is divided by the number of hours worked in the pay period for which the employee was entitled to receive overtime pay or premium pay, the quotient is at least equal to one and one half times the prescribed minimum wage.
This section clarifies how the minimum wage would be calculated? The hours worked by the employee for which he or she is entitled to overtime or premium pay would be separated from regular hours. The wages paid for regular hours would then be divided by the regular hours to determine if the minimum wage has been paid. The regular hours are defined as 44 hours per week before overtime is calculated. The employer can always pay overtime before 44 hours are completed. The premium pay is paid to employees who work on public holiday.
The overtime rate of pay or premium pay rate is same as one and one half time the regular hourly rate. The compliance for payment of overtime pay and premium pay would be based on the calculation as stated above.
If you or the employer disagrees with the investigating officer’s decision, both parties have a right to appeal to Ontario Labour Relations Board within 30 days of the officer’s decision. The Board appoints a referee to hear the appeal. It does not cost the employee to request an appeal but the employer may be required to deposit monies in trust with the Ministry of Labour if it is found to be owing. The referee decision is final and binding on both parties.
This information is provided for guidance only and should not be considered as a legal advice.
This article is provided by Rajinder K. Batra, who is a retired Employment Standards Officer with the Ministry of Labour with 15 years experience in these matters.