Work deemed or not deemed to have been performed

What is the Employment Standards Act?
 
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.
 
Ontario Regulation 285/01, subsection 6(1) states:
 
Subject to subsection (2), work shall be deemed to be performed by an employee for the employer,
     (a)     where work is,
             
              (i)     permitted or suffered to be done by the employer, or  
              (ii)    in fact performed by an employee although a term of the contract of
                       employment expressly forbids or limits hours of work or requires the
                       employer to authorize hours of work in advance;
    
     (b)     where the employee is not performing work and is required to remain at
               the place of employment,
              (i)       waiting or holding himself or herself ready for call to work, or
              (ii)     on a rest or break-time other than eating period.
 
Subsection 6(1)(a) clarifies that under certain situations, the work is considered to have been performed if the employer allows the employee to perform such work and includes such situations where the employer requires the employee to obtain prior authorization before he or she starts work or where his or her contract of employment places restriction on how many hours he or she can work. 
 
Subsection 6(1)(b) clarifies that if the employer requires the employee to stick around in case he or she is required to do work, the waiting time is considered towards hours of work and the employer is required to pay unless he or she is off for eating period.
 
Generally speaking, the travel time is counted towards work hours unless it is from home to work and back with the following exception:
.           If the employer permits the employee to take work vehicle home for the
convenience of the employer, the work hours starts from the time he or
she leaves home and ends when he or she returns home.
 
.           If the employee is required to transport other staff or supplies to or from
the workplace or work site, time so spent is counted as hours of work.
 
Ontario Regulation 285/01, Subsection 6(2) states:
 
Work shall not be deemed to be performed for an employer during the time the employee,
     (a)     is entitled to,
              (i)     take time off work for an eating period,
              (ii)    take at least 6 hours or such longer period as is established by     
                       contract, custom or practice for sleeping and the employer furnishes        
                       sleeping facilities, or
              (iii)   take time off work in order to engage in the employee’s own private
                       affairs or a pursuit as is established by contract, custom or practice;
 
     (b)     is not at the place of employment and is waiting or holding himself or
               herself ready for call to work.
 
This section clarifies when work is not considered to have been performed. The employee is not considered to be working if he or she is on a break for eating purposes. He or she is also not considered working if they have taken 6 or more hours for sleeping purposes and the employer provides the sleeping quarters. In addition, the employee is not considered working if he or she takes time off to attend to personal affairs.
 
The employee is also not considered working, if he or she waits for the employer to call for work provided they are not at employer’s place of business. In other words, on call employees are not considered to be working while they are on call. 
 
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.

If you have any questions regarding your employment, please contact the writer by e-mail at   esaconsulting@hotmail.com    

If you don’t have access to e-mail; you can fax your question at (905) 331-1805.

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