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(This Client Guide provides general information and is made available to provide a general description of statutory employment standards in Ontario. This is not intended to constitute legal advice, which by its nature is situation specific. The legal consequences of the minimum employment standards can be confusing and if you have questions about a specific employment standard or other legal problem, you should consult a lawyer who will provide legal advice only after reviewing all the facts relevant to your situation, rather than relying on the general information provided in this Guide.) Minimum Standards The Employment Standards Act of Ontario (the "Act") sets out provincial minimum standards for certain specified employment conditions in Ontario. Similar statutes are in place provincially across Canada and the Canada Labour Code applies to federally regulated employees. Since these Ontario standards are minimums only, an individual contract of employment may well entitle an employee to benefits beyond the statutory minimum standards. The Act makes it clear that where there is a greater entitlement under the employment contract, the employer is obliged to honour that greater benefit. It is not possible to contract out of the Act or waive any standard and any attempt to do so will be void. The Act was been substantially amended effective September 4, 2001 and this guide incorporates the new provisions. For a reference to the substantial differences between the new and old provisions, see: the Guide to the New Act. Application of Standards The minimum standards apply to an employee and employer if the employee's work is to be performed in Ontario or performed outside Ontario if the work outside Ontario is a continuation of work performed in Ontario. An employee includes a person who performs work for an employer for wages, supplies services to an employer for wages, receives training from a person who is an employer; or, is a homeworker. Exemptions and Special Rules These standards do not apply to:
Certain other groups are generally exempted form the hours of work, overtime pay, minimum wage, public holidays and vacation pay standards (Parts VII to XI of the Act):
Farm workers (involved in the production of eggs, milk, grain, seeds, fruit, vegetables, maple products, honey, tobacco, herbs, pigs, cattle, sheep, goats, poultry, deer, elk, ratites, bison, rabbits, game birds, wild boar and cultured fish - other farm workers are not exempt) are exempt from the general hours of work, overtime pay, minimum wage, public holidays and vacation pay standards, as they have their own standards set out in sections 24 to 27 of Ontario Regulation 285/01. There is also a lengthy list of exemptions from the emergency leave standards, minimum wage, overtime pay, public holidays and the hours of work, Sunday work (in retail business establishments) and eating periods standards. These are detailed in the individual standards guides, the links for which are set out below. Crown employees, and employees of a Crown agency, authority, board, commission or corporation, all of whose members are appointed by the Crown, are subject only to Part IV (Continuity of employment), Section 14, Part XII (Equal pay for equal work), Part XIII (Benefit plans), Part XIV (Leaves of absence), Part XV (Termination and severance of employment), Part XVI (Lie detector tests), Part XVII (Reprisal - there are two clauses that do apply: 74((1)(a)(vii) and 74(1)(b)) and Part XIX (Building service providers). There are special rules for homemakers, homeworkers, domestic workers, fruit, vegetable and tobacco harvesters, workers who may elect not to work and those in the commission automobile sales sector. All of these special rules or exemptions are intended to reflect the fact that a single standard, although a wise idea, may not allow for sufficient flexibility to accommodates the needs of employers and employees in a specific sector. A note of caution The concept of a minimum standard often causes confusion in the area of termination of employment. The Act, for instance, provides for a sliding scale of notice or pay in lieu of notice of up to eight weeks, depending on the length of service. However, the common law of Ontario implies a term into every contract of employment that it can only be terminated on reasonable notice, in the absence of any specific termination provision in the contract itself. This effectively means that virtually every employee in Ontario, because of the amount of reasonable notice as determined by the courts is greater than the statutory minimum by about a factor of four, will be entitled to much more than the minimum notice periods or payment in lieu of notice set out in the Act. For some employees (the employer must have an annual payroll of $2.5 million or have terminated 50 employees in a six month period), there is an additional statutory benefit of severance pay, limited to twenty-six weeks. For this reason, although knowledge of the statutory minimum standards is useful, it may be misleading. An employer, for instance, should not assume that it has met its legal obligations to an employee by complying with the minimum standard. Similarly, an employee should consider the written policies and procedures of the employer and its practices before concluding that she or he is entitled only to the minimum standard. The Act provides a cost-effective method for collecting amounts due or obtaining compliance with a minimum standard where that minimum standard applies to the employee. Since the employment standards officer is not necessarily qualified to provide advice on entitlements beyond the statutory minimum, it is often appropriate to seek the assistance of a lawyer to determine whether a lawsuit would result in greater benefits. An employee cannot do both. Where the minimum standard applies, however, there is no out of pocket cost to the employee pursuing the administrative remedy under the Act. The employment standards officer can effectively assist an employee in obtaining the minimum standard entitlements through administrative procedures that are often faster and more cost-effective than litigation against the former employer. There are limitation periods beyond which unpaid amounts for minimum standards will not be recoverable. These limitation periods are most often encountered in the claims for unpaid overtime pay which may extend back many years. The employment standards officer will only pursue recovery for the last two years of overtime pay. Specific standards links To view an employment standard, click on the applicable link below:
If you have any questions or wish further information on employment standards, please contact a member of our Employment Group.
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