ISTHATLEGAL.CA

is that legal.ca

Guides to Ontario and Canadian Law

Law from the ground up since 2005

home / about / conditions of use / talk to the online lawyer / case law summaries by topic / full list of guides and resources / links
tenant / small claims / welfare / odsp / human rights / employment / consumer / criminal injuries compensation / sppa / animals / dogs & cats / line fences / war

==> employment guide homepage

Wrongfully
dismissed and
want justice?

An online
lawyer can
make it
affordable.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Unpaid wage
claim?

An online lawyer
can guide
the way.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Workplace
conditions
becoming
unbearable?

Together let's
see what
we can do.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Wrongfully
dismissed and
want justice?

An online
lawyer can
make it
affordable.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Unpaid wage
claim?

An online lawyer
can guide
the way.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Workplace
conditions
becoming
unbearable?

Together let's
see what
we can do.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Wrongfully
dismissed and
want justice?

An online
lawyer can
make it
affordable.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Unpaid wage
claim?

An online lawyer
can guide
the way.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Workplace
conditions
becoming
unbearable?

Together let's
see what
we can do.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Wrongfully
dismissed and
want justice?

An online
lawyer can
make it
affordable.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Unpaid wage
claim?

An online lawyer
can guide
the way.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Workplace
conditions
becoming
unbearable?

Together let's
see what
we can do.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Wrongfully
dismissed and
want justice?

An online
lawyer can
make it
affordable.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Unpaid wage
claim?

An online lawyer
can guide
the way.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Workplace
conditions
becoming
unbearable?

Together let's
see what
we can do.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Wrongfully
dismissed and
want justice?

An online
lawyer can
make it
affordable.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Unpaid wage
claim?

An online lawyer
can guide
the way.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Workplace
conditions
becoming
unbearable?

Together let's
see what
we can do.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Wrongfully
dismissed and
want justice?

An online
lawyer can
make it
affordable.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Unpaid wage
claim?

An online lawyer
can guide
the way.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Workplace
conditions
becoming
unbearable?

Together let's
see what
we can do.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Wrongfully
dismissed and
want justice?

An online
lawyer can
make it
affordable.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Unpaid wage
claim?

An online lawyer
can guide
the way.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Workplace
conditions
becoming
unbearable?

Together let's
see what
we can do.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Wrongfully
dismissed and
want justice?

An online
lawyer can
make it
affordable.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Unpaid wage
claim?

An online lawyer
can guide
the way.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background


Workplace
conditions
becoming
unbearable?

Together let's
see what
we can do.

_____

Simon Shields, LLB
Lawyer and Author of Isthatlegal.ca

Talk to the Lawyer

(simonshields@isp.com)

Services
How It Works
Background



Employment Law (Ontario)
(January 2008)

Chapter 3 - Wages, Holidays and Vacations

  1. Overview
  2. Wages, 'Regular Wages' and Minimum Wages
    (a) "Wages" and Related Terms
    . General
    . "Salary"
    . "Piecework"
    . "Performance Bonuses"
    (b) "Regular" Wages
    . Definition
    . "Regular (Hourly Wage) Rates"
    (c) Minimum Wage
    . Overview
    . Minimum Wage Amounts
    . Determination of Minimum Wage Compliance
    . Room and Board Valuation
    (d) Exemptions from Minimum Wage
    (e) Special Rules for Fruit, Vegetable and Tobacco Harvesters
    . Overview
    . Room and Board Valuation
    (f) Special Rules for Domestic Workers
    (g) Special Rules for "Homemakers"
    (h) Special Rules for Residential Care Workers
    . Definition
    . Wage Determinations
    (i) Special Rules for Commission Automobile Salespersons
  3. Public Holiday Entitlements
    (a) Overview
    . Holidays Defined
    . ESA Treatment of Holiday Work
    (b) Key Definitions re Holiday Pay
    . "Public Holiday Pay"
    . "Premium Pay"
    . "Work"
    . Interpretation Problem Re "Work"
    . "Front-loading" and "Back-loading" Time Off
    (c) When Workers Can and Cannot Refuse to Work Holidays and Sundays
    . Overview
    . Main Public Holiday Work Rule
    i. Overview
    ii. Main Holiday Work Rule Exceptions
    iii. Front-Loading and Back-Loading Holidays
    iv. Work Completely Exempt from Public Holiday Provisions
    . Special RBHA Work Rule
    i. Overview
    ii. RBHA Right to Refuse Work Holidays or Sundays
    iii. RBHA Right to Refuse Work Exceptions
    iv. A Note About Sundays
    v. Enforcement
    (d) Holiday Entitlements Where Holiday Falls on Regular Working Day and is Taken Off
    (e) Holiday Entitlements Where Holiday Falls on Regular Working Day and is Worked Voluntarily
    . Overview
    . Normal Rule
    . Where Work Not Performed At All, WITHOUT Reasonable Cause
    . Where Work Not Performed At All, WITH Reasonable Cause
    . Where Work Not Performed in Part, WITHOUT Reasonable Cause
    . Where Work Not Performed in Part, WITH Reasonable Cause
    (f) Holiday Entitlements Where Holiday Falls on Regular Working Day and Work is Mandatory
    . Overview
    . Normal Rule
    . Where Work Not Performed At All
    . Where Work Not Performed in Part, WITHOUT Reasonable Cause
    . Where Work Not Performed in Part, WITH Reasonable Cause
    . Where Work Fully Performed but Front or Back-Loading
    (g) Holiday Entitlements Where Public Holiday Falls during Pregnancy or Parental Leave Time, or During Layoff
    (h) Holiday Entitlements Where Public Holiday Falls outside of Regular Working Day or on Vacation Time, and IS NOT Worked
    (i) Holiday Entitlements Where Public Holiday Falls outside of Regular Working Day or on Vacation Time, and IS Voluntarily Worked
    . Normal Rule
    . Where No Work Performed, WITHOUT Reasonable Cause
    . Where No Work Performed, WITH Reasonable Cause
    . Where Work Not Performed in Part, WITHOUT Reasonable Cause
    . Where Work Not Performed in Part, WITH Reasonable Cause
    (j) Work Exempt from Public Holiday Provisions
    . Overview
    . Exempt Employment and Employees
    . Special Holiday Rule for Fruit, Vegetable and Tobacco Harvesters
    (k) Holiday Entitlement Where Contractual Right of Refusal Waived by Employee
  4. Vacation Pay
    (a) Overview
    (b) 'Standard' and 'Alternative' Vacation Entitlement Years
    . Overview
    . Determining the Stub Period
    (c) Timing and Allocation of Vacation
    . General Rule
    . Special Rules for Stub Periods
    . Leave and Vacation Allocation
    (d) Determination of Vacation Duration
    . General
    . For Part-time or Irregular Employment
    . For Stub Periods
    (e) Vacation Pay
    . Overview
    . When Paid
    . Where Vacation Time Not Taken Off
    . Labour Disputes
    . Building Service Providers
    (f) Leave and Vacation Entitlements
    (g) Farm Worker Vacation Exemptions and Special Rules
    (h) Vacation Record-Keeping
    . Overview
    . General Vacation Records to Be Kept
    . Employee Entitlement to General Vacation Records
    . Additional Records Where "Alternative Vacation Entitlement Year" Applies
    . Employee Entitlement to "Stub Period" Vacation Records
    . When Vacation Information to be Recorded
    . Vacation Record Retention
    . Exemptions from Vacation Pay Record Duties
  5. Exemptions from Minimum Wage, Holiday and Vacation Entitlement Provisions
  6. Wage Payment and Records
    (a) Overview
    (b) Manner of Payment, Pay Statements and Deductions
    . Manner of Payment
    . Pay Statements
    . Pay Statement on Termination
    . Federal "Record of Employment"
  7. Deductions from Wages
    (a) Overview
    (b) "Lawful Authority" Deduction Examples
    . "Source Deductions"
    . Court Judgments and Family Support
    (c) Employee Deduction Authorization Restriction
    . Overview
    . Authorization Must be Specific
    . Authorization Cannot Relate to Employer Claims; Exceptions
    . Authorization Secondary to ESA Return Orders
  8. General Employer Records
    (a) Records Regarding Individual Employees and Hours Worked
    (b) Additional Register for Homeworkers
    (c) Record-Keeping of Employer-Employee Agreements
  9. Gender Discrimination in Wages Prohibited
    (a) Overview
    (b) ESA Pay Equity Provisions
    (c) Pay Equity Act
________________________________________

IMPORTANT NOTE
The Employment Standards Act (ESA) is riddled with many full and partial exemptions to it's provisions, as well as numerous 'special rules' for various industries or types of work. While I note these variations throughout this Employment Law (Ontario) Guide when explaining individual topics, readers facing a specific fact situation should carefully review Ch.1 "Coverage of Employment Law" to determine if their specific employment situation is governed by any of these exemptions or special rules.

1. Overview

This chapter explains the key employment law concepts of "wages" - as well as the related Employment Standards Act (ESA) minimum standard treatments of minimum wage, holiday pay and vacation pay. Also covered are employers' record-keeping duties respecting payment other matters.

Administrative enforcement of wage and related claims under ESA procedures is covered in Ch.7: "ESA Administrative Enforcement". Court enforcement of these and other claims is discussed in Ch.2: "Advocacy".


2. Wages, 'Regular Wages' and Minimum Wages

(a) "Wages" and Related Terms

. General

As is the case with the similar legal field of rent controls and the concept of "rent", no regime attempting to regulate wages can achieve this without a clear and encompassing definition of what "wages" are.

Under the common law of course the employment relationship is at heart a contractual one, and "wages" are the employer's contractual 'consideration' which they exchange for the employee's consideration, being labour. The concept of "wages" embodies several forms, including both hourly and "salary" payment, and as well further forms such as "piecework", commission and bonuses (these are discussed more below).

The Employments Standards Act modifies that common law meaning only slightly, setting out the following definition [ESA s.1 "wages"]:
"wages" means,

(a) monetary remuneration payable by an employer to an employee under the terms of an employment contract, oral or written, express or implied,

(b) any payment required to be made by an employer to an employee under this Act, and

(c) any allowances for room or board under an employment contract or prescribed allowances,

but does not include,

(d) tips and other gratuities,

(e) any sums paid as gifts or bonuses that are dependent on the discretion of the employer and that are not related to hours, production or efficiency,

(f) expenses and travelling allowances, or

(g) subject to subsections 60 (3) or 62 (2), employer contributions to a benefit plan and payments to which an employee is entitled from a benefit plan;
This definition ties itself closely to the common law concept of "wage" in that it encompasses all the legal entitlements of the employee to actual money payments, and as well the less common situation where accomodation is provided as part of the employment arrangement.

The exclusion for tips is natural, in that they are neither contractual entitlements but in fact third party 'gifts'. Similarly the exclusion for non-productivity-related gifts and bonuses reflects an intent to hive non-contractual payments off separately. "Expenses and travelling allowances" are more in the nature of restitution rather than consideration for labour performed - so that exclusion as well is consistent.

. "Salary"

While the term "salary" has common usage, it has little formal ESA use except marginally in relation to an employer's record-keeping duties. There it is defined as the situation where [ESA s.15(4)]:
  • the employee is entitled to be paid a fixed amount for each pay period; and

  • the amount actually paid for each pay period does not vary according to the number of hours worked by the employee, unless he or she works more than 44 hours in a week.
This definition (except the 44 hours limit) accords with the common usage of the term "salary", and is typically (though not always) associated with managerial or supervisory-level employees who are not 'hourly-paid'. This category of employees is discussed more in Ch.1, s.1(d): "Coverage of Employment Law: Basics: The Employment Relationship as a Contract".

. "Piecework"

"Piecework" is simply payment per unit of labour performed - typically measured by number of production units or repetitive tasks performed. Ontario employment law countenances 'piecework' [Reg 285/01, s.1: defn of "wage rate"], and - other than imposition of the usual employer duties to comply with the minimum wage and other standards required of the ESA - does nothing to ban or regulate it.

Piecework still exists in some trades, such as garment-making and other particularly intensive menial work which tends to rely heaviliy on recent immigrant labour.

. "Performance Bonuses"

Another form that "wages" can take is that of a "performance bonus", typically as an additional and supplementary amount paid on top of regular hourly wages or salary. The express exception of non-performance bonuses from the definition of "wages" (above) [ie. "gifts or bonuses that are dependent on the discretion of the employer and that are not related to hours, production or efficiency"] [ESA s.1(1) defn "wages"], plainly implies that bonuses are considered "wages" when they DO relate to "hours, production or efficiency" [see also Ch.1, s.1(d): "Manner of Wage Payment"].

(b) "Regular" Wages

. Definition

The concept of "regular" wages is distinct from the key ESA concept of "minimum wage". "Minimum wage" is just that - a minimum standard that does not preclude the parties from agreeing to higher wage rates.

It is clear that ESA enforcement procedures apply to enforce contractual wages owing rather than just minimum wage rates [ESA s.1(1) defn "wages", s.103(1)]. The need for the concept of "regular wages" arises for just such enforcement purposes [ESA s.1(1)]:
"regular wages" means wages other than overtime pay, public holiday pay, premium pay, vacation pay, termination pay and severance pay and entitlements under a provision of an employee's contract of employment that under subsection 5 (2) prevail over Part VIII, Part X, Part XI or Part XV;

Note:
The s.5(2) reference above ensures that the excepted amounts (ie. overtime pay, holiday pay, etc) in the defintion of "regular wages" are excepted in both their ESA "minimum standards" forms AND in their 'contractual' forms (which will usually be greater).
Thus the concept of "regular wage" is roughly equivalent to an employee's "base rate" of pay, absent any additional or supplementary amounts. The concept, in the form of either hourly or weekly rates (below), is essential for determining the amount of both unpaid wages, and as well the various forms of "premium pay" (ie. overtime and holiday pay) as they are themselves defined in proportion to the "regular wage" (ie. 1.5 times, etc).

. "Regular (Hourly Wage) Rates"

While the ESA generally deals in terms of 'hourly rates' for assessment and enforcement purposes, not all employment relationships use this measure. Primary amongst these are "salaried" employees who receive a lump sum wage (typically monthly), that is calculated on a fixed annual salary entitlement. Some arithmetic is required to render this wage level into the hourly rate which is the unit of ESA enforcement.

Therefore the ESA defines the "regular" hourly rates as follows [ESA s.1 "regular rate"]:
ESA s.1
"regular rate" means, ...

(a) for an employee who is paid by the hour, the amount earned for an hour of work in the employee's usual work week, not counting overtime hours,

(b) otherwise, the amount earned in a given work week divided by the number of non-overtime hours actually worked in that week;

Note:
This definition was made "subject to any regulation made under paragraph 10 of subsection 141 (1)". This reference was removed in the above quote for
simplicity as a full canvass of all the ESA Regs shows none made under s.141(1)10 (different determination of regular rate).
With the use the phrase "usual work week", and the averaging of salary against hours actually worked, we see the ESA again attempting to establish a truly "regular" - or base - hourly wage rate for purposes of defining and enforcing wage entitlements. The use of this concept will be seen at work immediately following in the discussion of "minimum wage".

(c) Minimum Wage

. Overview

The "minimum wage" is the minimum standard pay rate for an hour of "work" - below which an hourly rate of pay may not legally fall [ESA s.23(1)] [what constitutes "work" is explained in Ch.4, s.1(b): "Overtime and Hours of Work: Overview: Key Definitions".]

Readers will likely be aware of a fixed dollar figure discussed periodically in the news as Ontario's "minimum wage". In fact there are a several "minimum wages" in effect in Ontario under the ESA, varying with the type of employment and characteristics of the employee. The figure most commonly discussed is actually what is known as the "General Minimum Wage", which as of 31 March 2008 is $8.75/hour.

. Minimum Wage Amounts

It is the practice of the province to regularly re-determine minimum wage rates effective on 31 March (previously 01 February) of each year. Where a change in minimum wage occurs during a pay period, the employer must split the period into two pay periods reflective of the change [Reg 285/01, s.5.1].

Minimum wage categories are set out here [Reg 285/01 s.5(1-1.3),(3)]:
A. Students

These are students under 18 years of age who work 28 hours/week or less, or who are employed during school holidays. If an employee is both a student and a homeworker then their minimum rate shall be the homeworker rate (see below).

D. Bar Workers

Employees who regularly and directly serve liquor in liquor-licenced or permitted premises.

C. Hunting and Fishing Guides

Two flat rates apply:

(1) for less than five consecutive hours in a day,
(2) for more than five hours in a day, whether consecutive or not.

D. Homeworkers

These are employees working from their personal residence [see Ch.1, s.11: "Coverage of Employment Law: Exemptions and Special Treatment by Nature or Status of Work: Homeworkers"]. If an employee is both a student and a homeworker then their minimum rate is the homeworker rate.

E. GENERAL

All employees not listed under A to D above.

Time PeriodA
Students
B
Bar
C
Guides
D
Homeworkers
E
GENERAL
To 31 Jan 20046.405.95(1) 34.25
(2) 68.50
7.546.85
01 Feb 2004 to 31 Jan 20056.706.20(1) 35.75
(2) 71.50
7.877.15
01 Feb 2005 to 31 Jan 20066.956.50(1) 37.25
(2) 74.50
8.207.45
01 Feb 2006 to 31 Jan 20077.256.75(1) 38.75
(2) 77.50
8.537.75
31 Jan 2007 to 30 Mar 20087.506.95(1) 40.00
(2) 80.00
8.808.00
31 Mar 2008 to 30 Mar 20098.207.60(1) 43.75
(2) 87.50
9.638.75
31 Mar 2009 to 30 Mar 20108.908.25(1) 47.50
(2) 95.00
10.459.50
31 Mar 2010 forward9.608.90(1) 51.25
(2) 102.50
11.2810.25


. Determination of Minimum Wage Compliance

As set out above regarding the concept of "regular rate, determining compliance with minimum wage levels requires a comparison of the actual amount paid per hour against the applicable minimum wage hourly rate. Determination of the latter figure is simply a matter of identifying the type of employment as per the above chart.

Determination of the amount actually paid is a relatively simple matter of arithmetic. The period over which it is assessed is the regular "pay period" established between the parties [the term "pay period" is not defined in the ESA or Reg 285/01, but is almost universally either two weeks or a calendar month [ESA s.23(3)]. The calculation is as follows [ESA s.23(4)]:
  • For Regular Rate Hours (excluding overtime and any premium pay time such as holiday pay)

    $ paid for the pay period
    -------------------------
    No of regular hours worked

    must be greater than or equal to the applicable hourly minimum wage rate.

  • For Overtime and Premium Pay Hours (such as holiday pay)

    $ paid for the pay period
    -------------------------
    No of such hours worked

    must be greater than or equal to applicable hourly minimum wage rate x 1.5.
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)]. This is sometimes called the "three-hour rule". This rule does not apply for students (as defined above) or where "the employer is unable to provide work for the employee because of fire, lightning, power failure, storms or similar causes beyond the employer's control that result in the stopping of work." [Reg 285/01, s.5(8)].

. Room and Board Valuation

In those uncommon situations where room (accomodation) and board (food) is provided to the employee as part of the wage consideration, its' dollar value for ESA minimum wage calculation purposes is determined as follows [ESA s.23(2);
285/01, s.5(4)]:
  • Room

    $31.70 a week if the room is private and
    $15.85 a week if the room is not private.

  • Board

    $2.55 a meal and not more than $53.55 a week.

  • Room and Board Combined
    $85.25 a week if the room is private and
    $69.40 a week if the room is not private.
Amounts quoted here for room (accomodation) only count towards minimum wage where the room is [Reg 285/01, s.5(5)]:
  • reasonably furnished and reasonably fit for human habitation;
  • supplied with clean bed linen and towels; AND
  • reasonably accessible to proper toilet and wash-basin facilities.
Amounts quoted here for room and board only count towards minimum wage of "the employee has received the meals or occupied the room" [Reg 285/01, s.5(6)].
Note:
Fruit, vegetable and tobacco harvesters have their own rules (below) for room and board valuation.
(d) Exemptions from Minimum Wage

The following categories of employment and employee are exempt from the minimum wage provisions of the ESA [Reg 285/01, s.7]:
  • students in a recreational program operated by a charitable organization;

  • students teaching children;

  • students at a camp for children;

  • live-in superintendents, janitors or caretakers of a residential building.

  • farm employees "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)].

    Note however that fruit, vegetable and tobacco harvesters are subject to special minimum wage provisions, set out immediately below.
(e) Special Rules for Fruit, Vegetable and Tobacco Harvesters

. Overview

Special rules apply to farm workers employed to harvest fruit, vegetables or tobacco [Reg 285/01, s.24-25].

While these workers are notionally entitled to the same minimum wage levels set out above ("Minimum Wage Amounts"), this entitlement is deemed to be satisfied "if employees are paid a piece work rate that is customarily and generally recognized in the area as having been set so that an employee exercising reasonable effort would, if paid such a rate, earn" the minimum wage rates. This 'piecework' provision does not however excuse the employer from paying the minimum wage rates set out above to 'students' (students under 18 years of age who work 28 hours/week or less, or who are employed on school holidays), regardless of their 'piecework' productivity [Reg 285/01, s.25(3)].

. Room and Board Valuation

Where - as is often the case - room and board are provided to such employees, it's dollar value for ESA minimum wage purposes is determined as follows:
  • Room

    $31.70 a week if the room is private and
    $15.85 a week if the room is not private.

    This "rooming" amount only counts towards minimum wage where the room is:

    - reasonably furnished and reasonably fit for human habitation;
    - supplied with clean bed linen and towels; and
    - reasonably accessible to proper toilet and wash-basin facilities.

    Amounts quoted here for room only count towards minimum wage if "the employee has ... occupied the room".

  • Board (Meals)

    $2.55 a meal but not more than $53.55 a week.

    Amounts quoted here for board only count towards minimum wage if "the employee has received the meals".

  • Room and Board Combined

    $85.25 a week if the room is private.
    $69.40 a week if the room is not private.

    Amounts quoted here for room or board only count towards minimum wage if "the employee has received the meals or occupied the room".

  • Housing accommodation

    $73.30 a week.

    This "housing accomodation" amount only counts towards minimum wage where the accomodation is:

    - reasonably fit for human habitation;
    - includes a kitchen with cooking facilities;
    - includes at least two bedrooms or a bedroom and a living room; and
    - has its own private toilet and washing facilities.

  • Serviced housing accommodation (with utilities)

    $99.35 a week.

    This "serviced housing accomodation" amount only counts towards minimum wage where the accomodation:

    - is reasonably fit for human habitation;
    - includes a kitchen with cooking facilities;
    - includes at least two bedrooms or a bedroom and a living room;
    - has its own private toilet and washing facilities;
    - has light, heat, fuel, water, gas or electricity provided at the employer's expense.
(f) Special Rules for Domestic Workers

A domestic worker is "a person who is employed by a householder to perform services in the household or to provide care, supervision or personal assistance to children, senior or disabled members of the household, but does not include a sitter who provides care, supervision or personal assistance to children on an occasional, short-term basis" [Reg 285/01, s.1].

Be careful to distinguish "domestic workers" from "homemakers" (see below), the latter of which may perform similar work but are hired through agencies or third parties.

Where - as is often the case - room and board are provided to domestic workers, it's dollar value for ESA minimum wage purposes is determined as follows [Reg
285/01, s.19(2-4)]:
  • Room

    $31.70 a week if the room is private and $zero a week if the room is not private.

  • Board (meals)

    $2.55 per meal but not more than $53.55 a week.

  • Room and Board Combined

    $85.25 a week if the room is private
    $53.55 a week if the room is not private.
Amounts above for "room" only count towards minimum wage where the room is:
  • reasonably furnished and reasonably fit for human habitation;
  • supplied with clean bed linen and towels; and
  • reasonably accessible to proper toilet and wash-basin facilities.
Amounts quoted here for room or board only count towards minimum wage if "the employee has received the meals or occupied the room".

(g) Special Rules for "Homemakers"

A "homemaker"'s entitlement to minimum wage is limited to 12 hours per day - even if they work longer than that.

For these purposes a "homemaker" is someone hired through an agency or by a third party (perhaps a family member) "to perform homemaking services for a householder or member of a household in the householder's private residence". This special rule does not apply to someone hired by the householder directly to perform the same work [Reg 285/01, s.11].

Be careful to distinguish "homemakers" from "domestic workers" (see above), and from "homeworkers" (any worker who works at their home).

(h) Special Rules for Residential Care Workers

. Definition

A "residential care worker" is someone "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 Definitions].

. Wage Determinations

These jobs can place the employee in a position of responsibility for periods of 24 hours at a time, but are also commonly night 'sleep-over' positions.

These unusual circumstances - particularly the fact that employees must sleep through some of this time - have lead to significant modification of the basic ESA definition of "work". Despite the normal definition of "work" [see Ch.4, s.1(b): "Overtime and Hours of Work: Overview: Key Definitions"], no "work" shall be deemed to have been performed by a residential care worker where [Reg 285/01, s.22]:
  • they spend the time at the dwelling or cottage,
    - attending to private affairs or pursuits, or
    - resting, sleeping or eating, and
  • the time is, by agreement with the employer, free from the performance of any duties.
If such employees work 12 hours or more in a day (midnight to midnight), they are entitled to a maximum of 12 times their regular rate, which rate shall not be less than the applicable minimum wage rate [Reg 285/01, s.20(1,2)].

However - where the employee "by arrangement with the employer, is free from the performance of normal and regular duties in a day and as a result works less than 12 hours" - then the wages are reduced commensurately [Reg 285/01, s.20(3)].

Further, if the residential care worker works additional time over 12 hours (outside of their normal shift) in a day, then they are entitled to pay at their regular rate for that time - but in any event at least three hours regular rate pay, even if the additional work was less than three hours [Reg 285/01, s.20(4)]. In order to claim this additional pay, the employee must keep a record of these additional hours and provide that record to the employer before the next following pay day.

(i) Special Rules for Commission Automobile Salespersons

Special minimum wage 'equivalent' provisions, set out here, apply to auto salespersons who sell "partially or exclusively on a commission basis" [Reg 285/01, s.28]. Essentially they try to ensure that the salesperson makes at least minimum wage for their time worked, even if they have not earned commissions (and contractual wages) sufficient to reach that amount.

Such salespersons are entitled to be paid at least the minimum wage rate for the hours they work. If their commissions meet this standard then the minimum wage standard is met.

For determination of minimum wage compliance, wages (and commissions) are assessed at regular calendar quarter years (eg. 31 March, 30 June, etc) for all pay periods within that time (pay periods may not be longer than one month). Any supplement required to be paid to satisfy the minimum wage standards is to be paid out fully on the pay day covering the last day in the reconciliation period.

Upon termination of employment this reconciliation shall be done immediately on a pro-rated basis in accordance with the hours worked in the now-ended reconciliation period.

Continue Chapter Here ...
Statistics for June 2012: 28,354 Pageviews (avg. 945/day). Past Monthly Statistics / Photo by Stephen Elson