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Return to First Part of Chapter Here ...

9. Specific ESA Exemptions and Special Treatment: Public and Quasi-Public Sectors

. Police Officers

Police officers are exempt from all ESA provisions except as per the lie detectors provisions under Part XVI [see Ch.5, s.3(b)] [ESA s.3(5)].

. Residential Care Workers

"Residential care workers" are workers "employed to supervise and care for children or developmentally handicapped persons in a family-type residential dwelling or cottage and who resides in the dwelling or cottage during work periods, but does not include a foster parent" [Reg 285/01, s.1].

Residential care workers are exempt from the ESA's overtime provisions [see Ch.4, s.2(e)], and the ESA's hours of work limits and eating periods provisions [see Ch.4, s.3(f) and (i)] [Reg 285/01, s.23] - and their employers are also exempt from related record-keeping duties [see Ch.3, s.8(a)].

Residential care workers are subject to special rules respecting:
  • minimum wage [see Ch.3, s.2(h)] [Reg 285/01, s.20,22];
    and

  • hours of work limits [see Ch.4, s.5] [Reg 285/01, s.21,22].
. Road Building Workers

"Road building workers" work in the "preparation, construction, reconstruction, repair, alteration, remodelling, renovation, demolition, finishing and maintenance of streets, highways or parking lots, including structures such as bridges, tunnels or retaining walls in connection with streets or highways, and all foundations, installation of equipment, appurtenances and work incidental thereto" [Reg 285/01, s.1 defns].

These workers are subject to special overtime rules [see Ch.4, s.2(f)] [Reg 285/01, s.13].

. Teachers

Teachers, as defined in the Teaching Profession Act (and "students in training" to become such teachers) are broadly exempt from the following ESA provisions [Reg 285/01, s.2(1)]:
Part VII Hours of Work and Eating Periods [see Ch.4, s.3]
Part VIII Overtime Pay [see Ch.4, s.2]
Part IX Minimum Wage [see Ch.3, s.2(c)]
Part X Public Holidays [see Ch.3, s.3]
Part XI Vacation with Pay [see Ch.3, s.4]
Additionally, they are also exempt from the ESA "emergency leave" provisions if "the exercise of the entitlement would constitute an act of professional misconduct or a dereliction of professional duty" [Reg 285/01. s.3] [see Ch.5, s.2(e): "Private Emergency and Sickness Leave"].

. Firefighters

"Firefighters", for present purposes, are those employees defined as firefighters under s.1 of the Fire Protection and Prevention Act, 1997

Firefighters are exempt from the following ESA provisions:
Part VIII Overtime Pay [see Ch.4, s.2] [Reg 285/01, s.8(a)]
Part X Public Holidays [see Ch.3, s.3] [Reg 285/01, s.9(1)(a)]

and

ss.17-19 of Part VII ["Hours of Work and Eating Periods"] [see Ch.4, s.3(b)(c)(g)] [Reg 285/01, s.4(1)(a)], which include the:

- general hours of work limits, and
- hours free from work provisions.
. Ambulance Workers (Union and Non-union)

An employee who is an "ambulance driver, ambulance driver's helper or first-aid attendant on an ambulance" is exempt from the following ESA provisions:
Part VIII Overtime Pay [see Ch.4, s.2] [Reg 285/01, s.8(k)]
. Ambulance Paramedics and Emergency Medical Assistants (Unionized)

General

Paramedics and Emergency Medical Assistants (as those terms are defined in the Ambulance Act) who work in providing either land or air ambulance services, and who are unionized, are subject to special rules respecting required off-work intervals and eating periods [Reg 491/06].

Off-Work Intervals

If the employer and the union agree, then the required daily off-work interval may be eight hours [Reg 491/06, s.4] (otherwise, the normal standard is 11 hours). Other standard provisions respecting required off-work intervals apply [see Ch.4, s.3(g)].

Eating Periods

The standard rules respecting eating periods [which are set out in Ch.4, s.3(i)] are that employees may not work for more than five consecutive hours without a 30 minute eating period [ESA s.20(1)], although the parties may agree (verbally or in writing) - to substitute for this two eating periods totalling 30 minutes within each consecutive five hour period [ESA s.20].

However, if the employer and the union agree, then any of the following modifications may be made to these standard rules respecting eating periods [Reg
491/06, s.5]:
  • shorter eating periods,
  • longer and even unspecified intervals between eating periods,
  • fewer eating periods,
  • time off or compensation 'in lieu' of missed eating periods,
  • abolition of eating periods, or terms requiring only that the employer "shall make efforts to enable the employee to receive eating periods",
  • terms allowing missed or interrupted eating periods,
  • combinations of any of the above.
. Sewer and Watermain Construction Workers

Employees who are "employed in laying, altering, repairing or maintaining sewers and watermain and in work incidental thereto, or in guarding the site during the laying, altering, repairing or maintaining of sewers and watermain" are subject to a special overtime threshold of 50 hours per week, after which they are entitled to 1.5x their regular rate [Reg 285/01, s.16].

. Public Transit Services

General

Employees who work as operators and collectors in "public transit services" are subject to special ESA rules respecting off-work intervals and eating periods [Reg 390/05].

For these purposes "public transit service" "means any service for which a fare is charged for transporting the public by vehicles operated by or on behalf of a municipality or a local board, or under an agreement with a municipality or a local board".

For these purposes, "vehicle" includes transportation facilities for the physically disabled, but excludes any of the following:
  • vehicles and marine vessels used for sightseeing tours,
  • buses used to transport pupils, including buses owned and operated by, or operated under a contract with, a school board, private school or charitable organization,
  • buses owned and operated by a corporation or organization solely for its own purposes without compensation for transportation,
  • taxicabs,
  • railway systems of railway companies incorporated under federal or provincial statutes,
  • ferries,
  • aviation systems, or
  • ambulances.
Off-Work Intervals

If the employer and the union agree, then the required daily off-work interval may be eight hours [Reg 390/05, s.4] (otherwise, the normal standard is 11 hours). Other standard provisions respecting required off-work intervals apply [see Ch.4, s.3(g)].

Eating Periods

The standard rules respecting eating periods [which are set out in Ch.4, s.3(i)] are that employees may not work for more than five consecutive hours without a 30 minute eating period [ESA s.20(1)], although the parties may agree (verbally or in writing) - to substitute for this two eating periods totalling 30 minutes within each consecutive five hour period [ESA s.20(2)].

However these rules do not apply where the employee, either by express choice or by accepting whatever shift the employer assigns, is working either [Reg 390/05, s.5]:
  • a straight (continuous) shift; or

  • a split shift for which no meal break is provided in accordance with standard rules.
. Hospital Employees

Hospital employees, as per the definition of "hospitals" in the Hospital Labour Disputes Arbitration Act, are subject to special public holiday rules, explained in Ch.3, s.3(c) and (f) [ESA s.28].


10. Specific ESA Exemptions and Special Treatment: Private Sector

. Homemakers

"Homemakers" are persons employed "to perform homemaking services for a householder or member of a household in the householder's private residence" where they are not directly employed by that householder (ie. agency or third party employees) [Reg 285/01, s.11]. Do not confuse them with "homeworkers" (below) who are any sort of worker who works at home, and "domestic workers" (below) who provide care services for children, the elderly and others but are employed directly by the householder.

Homeworkers are subject a limit of 12 minimum wage hours in a day - even if they actually work more than that according to the normal definition of "work" [Reg 285/01, s.6,11(2)] [see Ch.3, s.2(g)].

Further, if this limit is reached they are also exempt from the following ESA provisions [Reg 285/01, s.11(3)]:
Part VII Hours of Work and Eating Periods [see Ch.4, s.3]
Part VIII Overtime Pay [see Ch.4, s.2]
s.15(1)4 (related record-keeping duties)
. Building Service Providers

"Building service providers" are persons, including owners and managers of a building, who provides it with food, security, cleaning and similar services" [ESA s.1(1) defns; Reg 287/01, s.1].

They are subject to special "continuity" [see Ch.6, s.1(f)] and termination [see Ch.6, s.4] rules in the event of a change in the building service contract [ESA ss.9-10,75-78; Reg 287/01].

. Retail Business Establishments

"Retail business establishments" are, subject to numerous exceptions, premises engaged in the "selling or offering for sale of goods or services by retail". They are subject to special rules respecting work refusals for Sunday and public holidays [see Ch.3, s.3(c)] [ESA ss.72-73; Reg 285/01, s.10].

. Construction Employees

"Construction employees" are those engaged in either on-site or off-site work "constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works" [Reg 285/01, s.1].

They are exempt from some of the Part VII "hours of work" limits [see Ch.4, s.3], and public holiday provisions [see Ch.3, s.3(j)] [Reg 285/01, s.9(2)].

. Domestic Workers

A "domestic worker" is someone employed by a householder to provide "care, supervision or personal assistance to children, senior or disabled members of the household" - but it excludes 'babysitters', whose services are provided only "on an occasional, short-term basis" [Reg 285/01, s.1 defns].

Be careful to distinguish "domestic workers" from "homemakers" (above), who are employed not by the householder but by an agency or other third party.

Domestic workers are subject to special rules respecting the receipt of "room and board" in lieu of some wages [see Ch.3, s.2(f)][Reg 285/01. s.19(2)].

As well, domestic workers are entitled to "written particulars" from the householder regarding [Reg 285/01, s.19(1)]:
  • the regular hours of work, including the starting and finishing times; and

  • the hourly rate of pay.
. Hotel, Motel, Tourist Resort, Restaurant and Tavern Workers

"Hotel, motel, tourist resort, restaurant and tavern" workers (hereafter "hotel workers") work in "an establishment that provides accommodation, lodging, meals or beverages for payment, and includes hotels, motels, motor hotels, tourist homes, tourist camps, tourist cabins and cottages, tourist inns, catering establishments and all other establishments of a similar nature" [Reg 285/01, s.1 defns].

Hotel workers (and seasonal hotel workers) are subject to special rules respecting public holiday and Sunday working [see Ch,3, s.3(c) and 3(j)] [ESA s.28; Reg 285/01, s.9].

As well, live-in part-time "hotel workers" are subject to special overtime calculation rules [see Ch.4, s.2(f)][Reg 285/01, s.14].

Further, live-in "seasonal" hotel workers are exempt from the ESA's public holiday provisions [Reg 285/01, s.9(1)(j)] [see Ch.3, s.3(j)]. "Seasonal employees" do not work "more than 16 weeks in a calendar year for an employer" [Reg 285/01, s.1 defns]. This means for a single employer - they could have other jobs working more than that in total, and still be a seasonal employee for the separate job/s that are under this time limit.

. Information Technology Professional

An "information technology professional" is an employee "who is primarily engaged in the investigation, analysis, design, development, implementation, operation or management of information systems based on computer and related technologies through the objective application of specialized knowledge and professional judgment" [Reg 285/01, s.1 defns].

Information technology professionals are exempt from the ESA's overtime provisions [Reg 285/01, s.8] [see Ch.4, s.2(e)], and the ESA's hours of work limits and eating periods provisions [see Ch.4, s.3(f) and (i)] [Reg 285/01,
s.4(3)(b)].

. "Recorded Visual and Audio-Visual Entertainment Production Industry" Workers

"Recorded visual and audio-visual entertainment production industry" workers work "producing visual or audio-visual recorded entertainment that is intended to be replayed in cinemas or on the Internet, as part of a television broadcast, or on a VCR or DVD player or a similar device, but does not include the industry of producing commercials (other than trailers), video games or educational material" [Reg 285/01, s.1 defns].

These workers are exempt from the hours of work limits and eating period provisions of the ESA [see Ch.4, s.3(f) and (i)] [Reg 285/01, s.4(3)(c)].

. Taxi Cab Drivers

A "taxi cab" is "a vehicle, with seating accommodation for not more than nine persons exclusive of the driver, used to carry persons for hire" [Reg 285/01, s.1 defns].

Taxi cab drivers are exempt from ESA overtime provisions [see Ch.4, s.2(e)] [Reg 285/01, s.8(j)], and ESA public holiday provisions [see Ch.3, s.3(j)] [Reg 285/01, s.9(1)(i)].

Note that, as per the discussion in s.1(b) above ["Tactical Note Re the "Employee Test""], the taxi cab industry is one where the line between employee and independent contractor can be blurred by artificial structuring of the contractual arrangement. Persons unsure as to the status of such an arrangement should review those issues carefully.

. Professionals

Professionals, for present purposes, includes "duly qualified practitioners" of and "students in training for") [Reg 285/01. s.2(1)]:
  • architecture,
  • law,
  • professional engineering,
  • public accounting,
  • surveying, and
  • veterinary science.
They are broadly exempt from the following ESA provisions:
Part VII Hours of Work and Eating Periods [see Ch.4, s.3]
Part VIII Overtime Pay [see Ch.4, s.2]
Part IX Minimum Wage [see Ch.3, s.2(c)]
Part X Public Holidays [see Ch.3, s.3]
Part XI Vacation with Pay [see Ch.3, s.4]
Additionally, they are also exempt from the ESA "emergency leave" provisions if "the exercise of the entitlement would constitute an act of professional misconduct or a dereliction of professional duty" [Reg 285/01. s.3] [see Ch.5, s.2(e): "Private Emergency and Sickness Leave"].

. Health Professionals

Health professionals, for present purposes, includes employees who are also "duly qualified practitioners" of (and "students in training for") [Reg 285/01.
s.2(1)]:
  • chiropody,
  • chiropractic,
  • dentistry,
  • massage therapy,
  • medicine,
  • optometry,
  • pharmacy,
  • physiotherapy,
  • psychology,
    and
  • a duly registered practitioner under the Drugless Practitioners Act.
The above are broadly exempt from the following ESA provisions:
Part VII Hours of Work and Eating Periods [see Ch.4, s.3]
Part VIII Overtime Pay [see Ch.4, s.2]
Part IX Minimum Wage [see Ch.3, s.2(c)]
Part X Public Holidays [see Ch.3, s.3]
Part XI Vacation with Pay [see Ch.3, s.4]
Additionally, the following health professionals are also exempt from the ESA "emergency leave" provisions, if "the exercise of the entitlement would constitute an act of professional misconduct or a dereliction of professional duty" [Reg 285/01. s.3] [see Ch.5, s.2(e): "Private Emergency and Sickness Leave"]: . Commercial Fisheries Workers

Commercial fisheries employees are broadly exempt from the following ESA provisions [Reg 285/01, s.2]:
Part VII Hours of Work and Eating Periods [see Ch.4, s.3]
Part VIII Overtime Pay [see Ch.4, s.2]
Part IX Minimum Wage [see Ch.3, s.2(c)]
Part X Public Holidays [see Ch.3, s.3]
Part XI Vacation with Pay [see Ch.3, s.4]
. Real Estate and Business Brokers

Real estate and business broker employees, as those terms are defined in the Real Estate and Business Brokers Act, 2002 are broadly exempt from the following ESA provisions [Reg 285/01, s.2]:
Part VII Hours of Work and Eating Periods [see Ch.4, s.3]
Part VIII Overtime Pay [see Ch.4, s.2]
Part IX Minimum Wage [see Ch.3, s.2(c)]
Part X Public Holidays [see Ch.3, s.3]
Part XI Vacation with Pay [see Ch.3, s.4]
. Non-Route Commission Salespersons

Non-route commission salesperson employees whose commission is in relation to offers of purchase and sale of goods or services, which transactions "are normally made away from the employer's place of business" are broadly exempt from the following ESA provisions [Reg 285/01, s.2]:
Part VII Hours of Work and Eating Periods [see Ch.4, s.3]
Part VIII Overtime Pay [see Ch.4, s.2]
Part IX Minimum Wage [see Ch.3, s.2(c)]
Part X Public Holidays [see Ch.3, s.3]
Part XI Vacation with Pay [see Ch.3, s.4]
. Fishing and Hunting Guides

Fishing and hunting guides employees are exempt from the following ESA provisions:
Part VIII Overtime Pay [see Ch.4, s.2] [Reg 285/01, s.8(c)]
Part X Public Holidays [see Ch.3, s.3] [Reg 285/01, s.9(1)(b)]

and

ss.17-19 of Part VII ["Hours of Work and Eating Periods"] [see Ch.4, s.3(b)(c)(g)] [Reg 285/01, s.4(1)(c)], which include the:

- general hours of work limits, and
- hours free from work provisions.
. Live-In Building Superintendents, Janitors or Caretakers

An employee who is a live-in building "superintendent, janitor or caretaker" is exempt from the following ESA provisions:
Part VIII Overtime Pay [see Ch.4, s.2] [Reg 285/01, s.8(i)]
Part IX Minimum Wage [see Ch.3, s.2(c)] [Reg 285/01, s.7(d)]
Part X Public Holidays [see Ch.3, s.3] [Reg 285/01, s.9(1)(h)]

and

ss.17-19 of Part VII ["Hours of Work and Eating Periods"] [see Ch.4, s.3(b)(c)(g)] [Reg 285/01, s.4(1)(e)], which include the:

- general hours of work limits, and
- hours free from work provisions.
. Embalmers and Funeral Directors

An employee who is an embalmer or funeral director is exempt from the following ESA provisions:
ss.17-19 of Part VII ["Hours of Work and Eating Periods"][see Ch.4, s.3(b)(c)(g)] [Reg 285/01, s.4(1)(f)], which include the:

- general hours of work limits, and
- hours free from work provisions.
. Landscape Gardeners and Swimming Pool Workers

Employees who are either landscape gardeners or who install and maintain swimming pools are exempt from the following ESA provisions:
Part VIII Overtime Pay [see Ch.4, s.2] [Reg 285/01, s.8(d)]
Part X Public Holidays [see Ch.3, s.3] [Reg 285/01, s.9(1)(c)]

and

ss.17,19 of Part VII ["Hours of Work"] [see Ch.4, s.3(b)(c)] [Reg 285/01, s.4(2)(a,b)], which include the:

- general hours of work limits.
. Seasonal Fresh Fruit and Vegetable Processing Workers

Seasonal employees "whose employment is directly related to the canning, processing and packing of fresh fruits or vegetables or their distribution by the canner, processor or packer" are subject to a special overtime threshold of 50 hours per week, after which they are entitled to 1.5x their regular rate [Reg 285/01, s.15].

"Seasonal employees" do not work "more than 16 weeks in a calendar year for an employer" [Reg 285/01, s.1 defns]. This means for a single employer - they could have other jobs working more than that in total, and still be a seasonal employee for the separate job/s that are under this time limit.

. Local Cartage Workers

Employees who are either drivers or driver's helper's "of vehicles used in the business of carrying goods for hire within a municipality or to any point not more than five kilometres beyond the municipality's limits", are subject to a special overtime threshold of 50 hours per week, after which they are entitled to 1.5x their regular rate [Reg 285/01, s.17].

. Highway Transport Workers

Highway transport employees [as explained and defined in Ch.4, s.2(f): see that discussion] are subject to a special overtime threshold of 60 hours per week, after which they are entitled to 1.5x their regular rate [Reg 285/01, s.18].

. Commission Auto Salesperson Employees

Commission auto salesperson employees are subject to special provisions respecting pay periods and periodic reconciliation of their commission earnings with minimum wage standards [as explained and defined in Ch.3, s.2(i): see that discussion] [Reg 285/01, s.28].

. Automobile-related Industry Employees

Employees who - to any degree in their work - are both directly involved with, and essential to, any of the following aspects of the automobile industry are subject to a minor variation (below) in the off-work interval rules [Reg 502/06, s.1,2][more detailed definitions of these terms are located in Regulation 502/06, s.1 itself]:
  • manufacturing (assembly);
  • parts manufacturing;
  • warehousing; and
  • marshalling.
For such employees, if the parties agree, then the standard required daily off-work interval of 11 hours may be shortened for one day a week only to 8 hours or more [Reg 502/06, s.3]. Other standard provisions respecting required off-work intervals apply [see Ch.4, s.3(g)].

. Live Performance, Trade Show and Convention Employees

Technical and production support worker employees, working in the production of "live performances of theatre, dance, comedy, musical productions, concerts and opera - and of trade shows and conventions" may be subject to a reduced off-work interval. For these purposes, 'technical and production support work' "includes stage and set construction, hair cutting and styling, preparation and fitting of wigs and costumes, preparation and application of make-up, preparation and operation of lighting, sound and stage equipment and props, and stage
management" [Reg 160/05, ss.1-3].

If such employees and employers agree, then the required daily off-work interval for such employees may be eight hours [Reg 160/05, s.4] (otherwise, the normal standard is 11 hours). Other standard provisions respecting required off-work
intervals apply [see Ch.4, s.3(g)].

. Mineral Exploration and Mining

Employees who work either at sites of mineral exploration, "whose principal business is mining", or who - while working at mines - live away from home for consecutive working days, are subject to special 'days free from work' provisions [Reg 159/05, ss.1-3].

For these purposes:
"mineral exploration" means prospecting, staking or exploration for minerals and any related activities, and includes,

(a) advanced exploration such as the excavation of an exploratory shaft, adit or decline, the extraction of minerals for the purpose of proving a mineral deposit, and the installation of a mill for test purposes, and

(b) site rehabilitation;
and:
"mining" means the extraction, concentration and smelting of economic minerals from a mineral deposit for commercial purposes.
The normal 'days free from work' rules are that an employee must have at least tne 24-hour period free from work each week and one 48-hour period free from work in each two consecutive weeks period [ESA s.18(4)] [see Ch.4, s.3(g)]. However, if the above employees and their employers agree, then [Reg 159/05, s.4]:
  • the employer shall not require or permit the employee to perform work on more than 28 consecutive days,

    AND

  • the employee shall receive a number of consecutive 24-hour periods off-work equal to one-third of the consecutive days they worked just before the time off. If in this calculation, fractions result, they shall be rounded up to give more full days off.
. Farmers and Agriculture Workers

Overview

Below are three separate categories of farmer and agriculture employees, and various ESA exemptions which apply to them.

Primary Producers

"Primary producers" (author's term) are farm and agriculture workers "employed on a farm whose employment is directly related to the primary 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" [Reg 285/01, s.2(2)].

"Primary producers" are exempt from the following ESA provisions:
Part VII Hours of Work and Eating Periods [see Ch.4, s.3]
Part VIII Overtime Pay [see Ch.4, s.2]
Subject to the below-noted special rules for "fruit, vegetable and tobacco harvester" employees, "primary producers" are also exempt from the following ESA provisions:
Part IX Minimum Wage [see Ch.3, s.2(c)]
Part X Public Holidays [see Ch.3, s.3]
Part XI Vacation with Pay [see Ch.3, s.4]
Fruit, Vegetable and Tobacco Harvesters

Despite the exemptions set out for "primary producers" (above) [respecting minimum wage, public holidays and vacations] special rules apply to those "employed on a farm to harvest fruit, vegetables or tobacco for marketing or storage", as follows [and as explained at the references given] [Reg 285/01, s.24]:
Minimum Wage [see Ch.3, s.2(e)] [Reg 285/01, s.25]
Public Holidays [see Ch.3, s.3(j)] [Reg 285/01, s.27]
Vacations [see Ch.3, s.4(e) and (g)] [Reg 285/01, s.26]
Miscellaneous

Miscellaneous (author's term) farm and agriculture employees are those whose employment is directly related to any of the following:
  • the growing of mushrooms,
  • the growing of flowers for the retail and wholesale trade,
  • the growing, transporting and laying of sod,
  • the growing of trees and shrubs for the wholesale and retail trade,
  • the breeding and boarding of horses on a farm, or
  • the keeping of furbearing mammals, as defined in the Fish and Wildlife Conservation Act, 1997, for propagation or the production of pelts for commercial purposes.
These employees are exempt from the following ESA provisions:
Part VII Hours of Work and Eating Periods [see Ch.4, s.3] [Reg 285/01, s.4(3)(a)]
Part VIII Overtime Pay [see Ch.4, s.2] [Reg 285/01, s.8(e)]
Part X Public Holidays [see Ch.3, s.3] [Reg 285/01, s.9(1)(d)]

11. Specific ESA Exemptions and Special Treatment: By Nature or Status of Work

. Supervisors and Managers

"Supervisors and managers" are employees "whose work is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis".

They are exempt from the following ESA provisions:
Part VIII Overtime Pay [see Ch.4, s.2] [Reg 285/01, s.8(b)]

and

ss.17-19 of Part VII [Reg 285/01, s.4(1)(b)], which include the:

- general hours of work limits [see Ch.4, s.3(f)(h)]
- off-work intervals [see Ch.4, s.3(g)(h)]
. "Elective" Workers

There is an unusual class of employees, called "elective workers" who work "under an arrangement whereby he or she may elect to work or not when requested to do so."

Elective workers are exempt from the public holiday provisions of the ESA [Reg 285/01, s.9(1)(k)], not that it matters in terms of taking time off, but if they do work on public holidays, they are entitled to 1.5 x time wages [Reg 285/01, s.29].

. Probationary Employees

The term "probationary employee" has no fixed ESA definition, but employees of less than three months duration are effectively exempted from the notice of termination and pay-in-lieu provisions of the Act [ESA s.54,57-58,61]. Due to this, many treat the three month cut-off as the defining line of a "probationary employee".

Otherwise (for the most part) they fall under normal ESA treatment. There are some obscure and minor exemptions applicable to them. I have not organized these, so the best way to locate them may be a key word search on "probationary" in the topics of concern.

. Trainees

"Trainees" under an employer are generally included in the ESA definition of "employee" "if the skill in which the individual is being trained is a skill used" by the employer's employees (ie. they are being trained in the trade of the workplace). As such trainees are generally covered under its provisions.

However, if all of the following circumstances apply (essentially where the training is purely altruistic) then trainees are not considered employees, and as such are not covered under the ESA [ESA s.1(1) defn "employee",(2)]:
  • the training is similar to that which is given in a vocational school;
  • the training is for the benefit of the individual;
  • the person providing the training derives little, if any, benefit from the activity of the individual while he or she is being trained;
  • the individual does not displace employees of the person providing the training;
  • the individual is not accorded a right to become an employee of the person providing the training;
  • the individual is advised that he or she will receive no remuneration for the time that he or she spends in training.
. Homeworkers

A "homeworker" is an employee "who performs work for compensation in premises occupied by the individual primarily as residential quarters" [ESA s.1(1) defns].

Many homeworkers are employees in the "women's clothing" or "garment industry", which is subject to significantly distinct rules from most ESA employment situations. Readers concerned with homework in that industry should review s.8: "Women's Clothing and Fur Industry Employees (Garment Workers)", above. Evenwithin that unique regulatory regime homeworkers are often exempt.

Homeworkers are entitled to minimum wage at 110% of the General minimum wage rate [see Ch.3, s.2(c)].

Homeworkers are entitled to written advisories from their employer stating [Reg 285/01, s.12]:
  • the type of work that he or she is being employed to perform,

    and, as applies:

  • if they are hourly paid, their regular hourly rate; or

  • if they are piecework paid for "manufacture" work:

    - their regular piecework rate; ["manufacture" includes preparation, improvement, repair, alteration, assembly or completion], and

    - if the employer "requires the manufacture of a certain number of articles or things to be completed by a certain date or time, the employer shall advise the homeworker of those requirements", or

  • if the homeworker is to be paid on some other basis, the basis on which he or she is to be paid.
The employment of homeworkers also imposes a duty on their employer to, in addition to their other record-keeping duties, maintain a "homeworker register" [see Ch.3, s.8(b)] [ESA s.15(2,5,6)].

. Continuous Operations

A "continuous operation" means an operation or that part of an operation that normally continues 24 hours a day without cessation in each seven-day period until it is concluded for that period.

Employees working in continuous operations are subject to special public holiday rules, explained in Ch.3, s.3(c) and (f) [ESA s.28].


12. Specific ESA Exemptions and Special Treatment: By Personal Characteristics of Employee

. Students

Overview

Below I set two separate categories of "student" and various ESA exemptions which apply to them.

However note also the s.7 complete ESA exemptions for "Work Experience Students", and various exemptions and special rules for students in training in specific professions (located in the discussions of the specific profession).

Students Under 18

This is the broad class of young students which is established for minimum wage purposes, and their exemptions relate to standard minimum wage rules [which, along with the student minimum wage rate, are generally set out in Ch.3, s.2(c)].

Students under 18 are exempted from the otherwise standard rule that where an employee shows up for work as required - and if they regularly work at least three hours in a day - they shall be deemed to have worked three hours for minimum wage calculation purposes [Reg 285/01, s.5(7)] [see Ch.3, s.2(c)].

Students in Charity Recreational and Child-Related Work

The below exemptions apply (apparently regardless of age) to:
  • students in a recreational program operated by a charitable organization;

  • students instructing or supervising children;

  • students at a camp for children.
They are completely exempt from the ESA provisions regarding:
Part IX Minimum Wage [see Ch.3, s.2(c)(d)] [Reg 285/01, s.7]:
Part VIII Overtime Pay [see Ch.4, s.2] [Reg 285/01, s.8(f,g,h)]
Part X Public Holidays [see Ch.3, s.3] [Reg 285/01, s.9(1)(e,f,g)]
. Corporate Directors

Directors of corporations, even if they are otherwise employees of the corporation (most are not, and the test is the normal employment test), are generally exempt from the employee protections of the ESA.

However, to the extent that they are directors of corporations that are ESA-regulated employers, then they are subject to liability for six month's unpaid employee wages in the event that the corporate employer becomes insolvent or otherwise cannot honour such obligations. This topic is explained in fuller detail in Ch.7, s.4(e): "ESA Administrative Enforcement: Orders and Related Measures: Wage Compensation Orders Against Directors of Employer Corporations".

For this purpose, directors of corporate employers are subject to these special "Director Liability" provisions of the ESA, and all necessary and related enforcement provisions (including prosecutions), as follows:
Part XX Liability of Directors [see Ch.7, s.4(e)]
Part XXI Who Enforces this Act and What They Can Do [see Ch.7]
Part XXII Complaints and Enforcement [see Ch.7]
Part XXIII Reviews by the Board [see Ch.8]
Part XXIV Collection [see Ch.7, s.5]
Part XXV Offences and Prosecutions [see Ch.9, s.4]
Part XXVI Miscellaneous Evidentiary Provisions
Part XXVII Regulations
Part XXVIII Transition

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