Federal Government Accepting Comments on Exemptions to Hours of Work Requirements in Air and Rail Transportation, Banking and Telecommunications Sectors

Federal Government Accepting Comments on Exemptions to Hours of Work Requirements in Air and Rail Transportation, Banking and Telecommunications Sectors

Employers in the banking, air and rail transportation, and telecommunications and broadcasting sectors have until February 23, 2022 to provide feedback on proposed regulations to exempt certain classes of workers from hours of work obligations added to the Canada Labour Code (Code) in late 2019.

The federal government advised of its broader proposal through a recent Regulatory Impact Analysis Statement.

In September 2019, amendments to Part III (Labour Standards) of the Code, related to employee scheduling and hours of work, came into force. Specifically, the new hours of work provisions require employers to provide their employees with at least 96 hours’ written notice of their work schedules; at least 24 hours’ written notice of shift changes or additions; an unpaid break of at least 30 minutes during every period of 5 consecutive hours of work; and a rest period of at least 8 consecutive hours between work periods or shifts.

Regulations restricting the scope of these hours of work requirements in the road and marine transportation, postal, and grain sectors took effect on February 1, 2022. The federal government has now turned its attention to the banking, telecommunications, and air transportation sectors. In doing so, the government has acknowledged that:

“the operational reality in sectors with continuous operations (i.e. those that generally operate 24 hours a day, 7 days a week, such as air and rail transportation) and in sectors with unique scheduling practices (such as banking, telecommunications and broadcasting) is such that scheduling flexibility is required.”

This suggests that the government is open to modifications to ensure that businesses in these sectors can operate as necessary. While the foregoing hours of work requirements do not apply to managers or employees already on a flexible work arrangement, other employees are affected.

Proposed Exemptions

The federal government has proposed exempting several specific classes of workers from some of the newer hours of work requirements.

Air Transportation

The government has proposed exempting several classes of workers in the air transportation sector from the obligation to provide 24 hours’ notice of a shift change, as well as permitting breaks for certain on-flight and dispatch employees to be split into two 15-minute periods. The air transportation classes are:

• Pilots, flight engineers, alternative crew members, flight instructors, pursers, flight attendants, and loadmasters;
• Flight dispatchers and followers;
• Firefighters;
• Airfield operations specialists, airfield supervisors, and airfield operations and emergency response specialists; and
• Millwrights, electricians, heavy duty mechanics, heating, ventilation and air condition (HVAC) specialists, and information technology employees engaged in airport emergency response and preparedness operations.

Rail Transportation

The government has identified the following classes:

• Locomotive engineers, conductors, brakepersons, yardmasters, assistant yardmasters, locomotive firepersons, hostlers, baggage handlers, yardpersons, switch tenders and car retarder operators engaged in road, passenger, or yard service;
• Locomotive engineers, conductors, and brakepersons engaged in road or passenger service;
• Maintenance of way employees;
• Signals and communications equipment maintenance employees;
• Shopcraft employees;
• Intermodal service employees;
• Rail traffic controllers;
• Railway police officers;
• Service employees on board passenger trains; and
• Service employees on board passenger trains for more than 24 hours.

Of these classes, all but the latter two would be exempt from the 24-hour notice of change requirement. Locomotive engineers, conductors, and brakepersons engaged in road or passenger service would be exempt from the 8-hour rest period and 30-minute break requirements as well.

Banking

The only class of banking employees identified is commission-paid salespeople, who would be exempt from each of the recent hours of work requirements.

Telecommunications and Broadcasting

Commissioned salespeople would be exempt from all recent hours of work requirements. In addition, producers, technicians and journalists who are working in the production of events that are broadcast live would be exempt from the 8-hour rest period requirement. Finally, the requirement to provide a 30-minute rest period every five hours would be modified to permit two 15-minute periods during a shift for the following classes of workers:

• Producers, technicians and journalists who are working in the production of events that are broadcast live;
• Producers, technicians and journalists who are working in the production of sporting events that are broadcast live; and
• Technicians who install telecommunications equipment on customer property.

The new exemptions would take effect 5 months from their publication date for rail, banking and telecommunications sectors; and 10 months from the publication date for the air transportation sector.

Employers have a final opportunity to comment on the proposed Regulations by February 23, 2022 and can do so online. McMillan’s employment and labour relations team has been closely monitoring the hours of work requirements and is ready to assist with any further comment that affected employers wish to submit, including on the need to broaden the scope of the foregoing exemptions.

by Kyle Lambert and Dianne Rideout

A Cautionary Note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2022