Canada Labour Code (R.S.C., 1985, c. L-2)

Marginal note:Burden of proof

167.2 If, in any proceeding under this Part other than a prosecution, or in any proceeding under Part IV in respect of a violation that is related to this Part, an employer alleges that a person is not their employee, the burden of proof is on the employer.

Marginal note:Saving more favourable benefits

• 168 (1) This Part and all regulations made under this Part apply notwithstanding any other law or any custom, contract or arrangement, but nothing in this Part shall be construed as affecting any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to the employee than his rights or benefits under this Part.

• Marginal note:Where collective agreement applies exclusively

  (1.1) Divisions II, IV, V and VIII do not apply to an employer and employees who are parties to a collective agreement that confers on employees rights and benefits at least as favourable as those conferred by those respective Divisions in respect of length of leave, rates of pay and qualifying periods for benefits, and, in respect of employees to whom the third party settlement provisions of such a collective agreement apply, the settlement of disagreements relating to those matters is governed exclusively by the collective agreement.

• Marginal note:Sunday

  (2) Nothing in this Part authorizes the doing of any work on Sunday that is prohibited by law.

168.1 [Repealed, L-2, s. 168.1]

DIVISION IHours of Work

Marginal note:Standard hours of work

• 169 (1) Except as otherwise provided by or under this Division

  • (a) the standard hours of work of an employee shall not exceed eight hours in a day and forty hours in a week; and

  • (b) no employer shall cause or permit an employee to work longer hours than eight hours in any day or forty hours in any week.

• Marginal note:Averaging

  (2) Where the nature of the work in an industrial establishment necessitates irregular distribution of the hours of work of an employee, the hours of work in a day and the hours of work in a week may be calculated, in such manner and in such circumstances as may be prescribed by the regulations, as an average for a period of two or more weeks.

• Marginal note:Duration of averaging

  (2.1) The averaged hours of work calculated pursuant to subsection (2) remain in effect

  • (a) where the averaging of hours of work is agreed to in writing by an employer and a trade union, for the duration of that agreement or for such shorter period as is agreed to by the parties; or

  • (b) where the averaging of hours of work is not agreed to in writing by an employer and a trade union, for no longer than three years.

• Marginal note:General holidays in week

  (3) In a week in which one or more general holidays occur that under Division V entitle an employee to holidays with pay in that week, the hours of work of the employee in that week shall be reduced by the standard hours of work for each general holiday in that week and, for the purposes of this subsection, in calculating the time worked by an employee in any such week, no account shall be taken of any time worked by the employee on the holidays or of any time during which the employee was at the disposal of his employer during the holidays.

Marginal note:Break

• 169.1 (1) Every employee is entitled to and shall be granted an unpaid break of at least 30 minutes during every period of five consecutive hours of work. If the employer requires the employee to be at their disposal during the break period, the employee must be paid for the break.

• Marginal note:Exception

  (2) An employer may postpone or cancel the break set out in subsection (1) if it is necessary for the employee to work in order to deal with a situation that the employer could not have reasonably foreseen and that presents or could reasonably be expected to present an imminent or serious

  • (a) threat to the life, health or safety of any person;

  • (b) threat of damage to or loss of property; or

  • (c) threat of serious interference with the ordinary working of the employer’s industrial establishment.

Marginal note:Rest period

• 169.2 (1) Every employee is entitled to and shall be granted a rest period of at least eight consecutive hours between work periods or shifts.

• Marginal note:Exception

  (2) Despite subsection (1), an employer may require that an employee work additional hours to their scheduled work periods or shifts which would result in them having a rest period of fewer than eight consecutive hours between their work periods or shifts if it is necessary for the employee to work in order to deal with a situation that the employer could not have reasonably foreseen and that presents or could reasonably be expected to present an imminent or serious

  • (a) threat to the life, health or safety of any person;

  • (b) threat of damage to or loss of property; or

  • (c) threat of serious interference with the ordinary working of the employer’s industrial establishment.

Marginal note:Modified work schedule — collective agreement

• 170 (1) An employer may, in respect of one or more employees subject to a collective agreement, establish, modify or cancel a work schedule under which the hours exceed the standard hours of work set out in paragraph 169(1)(a) if

  • (a) the average hours of work for a period of two or more weeks does not exceed forty hours a week; and

  • (b) the schedule, or its modification or cancellation, is agreed to in writing by the employer and the trade union.

• Marginal note:Modified work schedule

  (2) Subject to subsection (3), an employer may, in respect of one or more employees not subject to a collective agreement, establish, modify or cancel a work schedule under which the hours exceed the standard hours of work set out in paragraph 169(1)(a) if

  • (a) the average hours of work for a period of two or more weeks does not exceed forty hours a week; and

  • (b) the schedule, or its modification or cancellation, has been approved

    • (i) in the case of one employee’s schedule, in writing by that employee, or

    • (ii) in the case of more than one employee’s schedule, by at least 70% of the affected employees.

• Marginal note:Posting of notice

  (3) Where a work schedule is to be established, modified or cancelled pursuant to subsection (2), the employer shall post a notice of the new schedule, or of its modification or cancellation, in readily accessible places where it is likely to be seen by the affected employees, for at least thirty days before the new schedule or its modification or cancellation takes effect.

• Marginal note:Exception

  (4) Subsection (3) does not apply to the establishment, modification or cancellation of one employee’s work schedule that results from a request made under subsection 177.1(1).

Marginal note:Maximum hours of work

• 171 (1) An employee may be employed in excess of the standard hours of work but, subject to sections 172, 176 and 177, and to any regulations made pursuant to section 175, the total hours that may be worked by any employee in any week shall not exceed forty-eight hours in a week or such fewer total number of hours as may be prescribed by the regulations as maximum working hours in the industrial establishment in or in connection with the operation of which the employee is employed.

• Marginal note:Averaging

  (2) Subsection 169(2) applies in the computation of the maximum hours of work in a week prescribed under this section.

Marginal note:Maximum hours of work — collective agreement

• 172 (1) An employer may, in respect of one or more employees subject to a collective agreement, establish, modify or cancel a work schedule under which the hours exceed the maximum set out in section 171 or in regulations made under section 175 if

  • (a) the average hours of work for a period of two or more weeks does not exceed forty-eight hours a week; and

  • (b) the schedule, or its modification or cancellation, is agreed to in writing by the employer and the trade union.

• Marginal note:Maximum hours of work

  (2) Subject to subsection (3), an employer may, in respect of one or more employees not subject to a collective agreement, establish, modify or cancel a work schedule under which the hours exceed the maximum set out in section 171 or in regulations made under section 175 if

  • (a) the average hours of work for a period of two or more weeks does not exceed forty-eight hours a week; and

  • (b) the schedule, or its modification or cancellation, has been approved

    • (i) in the case of one employee’s schedule, in writing by that employee, or

    • (ii) in the case of more than one employee’s schedule, by at least 70% of the affected employees.

• Marginal note:Posting of notice

  (3) Where a work schedule is to be established, modified or cancelled pursuant to subsection (2), the employer shall post a notice of the new schedule, or of its modification or cancellation, in readily accessible places where it is likely to be seen by the affected employees, for at least thirty days before the new schedule or its modification or cancellation takes effect.

• Marginal note:Exception

  (4) Subsection (3) does not apply to the establishment, modification or cancellation of one employee’s work schedule following a request made under subsection 177.1(1).

Marginal note:Vote

• 172.1 (1) If a work schedule is established, modified or cancelled under subsection 170(2) or 172(2), any affected employee may, within ninety days after the new schedule or its modification or cancellation takes effect, request that the Head conduct a vote to determine whether seventy per cent of the affected employees approve the new schedule or its modification or cancellation.

• Marginal note:Duty of Head

  (2) If a request is made under subsection (1), the Head must conduct a secret vote to determine the percentage of the affected employees that approves the new schedule or the modification or cancellation.

• Marginal note:Confidentiality

  (3) A request made under subsection (1), the ballots and any other documents relating to the vote are confidential and shall not be given to the employer.

• Marginal note:Counting of ballots

  (4) The Head must count the ballots in the presence of a representative chosen by the affected employees and a representative chosen by the employer.

• Marginal note:Communication of result of vote

  (5) The Head must inform the employer, by written notice, of the result.

• Marginal note:Effect of non-approval

  (6) If the result of the vote indicates that less than 70% of the affected employees approve the new schedule or its modification or cancellation, the employer must comply with the result of the vote within 30 days after being informed of that result by the Head.

• Marginal note:Regulations

  (7) The Governor in Council may make regulations respecting the conduct of votes under this section.

• Marginal note:Statutory Instruments Act not applicable

  (8) The Statutory Instruments Act does not apply in respect of the written notice given by the Head to the employer under subsection (5).

Marginal note:Duration

• 172.2 (1) A work schedule that is established or modified under subsection 170(1) or 172(1) remains in effect for the duration of the written agreement between the employer and the trade union.

• Marginal note:Idem

  (2) A work schedule that is established or modified under subsection 170(2) or 172(2) remains in effect for three years or for such shorter period as is agreed to by the parties.

Marginal note:Scheduling hours of work

173 Except as may be otherwise prescribed by the regulations, hours of work in a week shall be so scheduled and actually worked that each employee has at least one full day of rest in the week, and, wherever practicable, Sunday shall be the normal day of rest in the week.

Marginal note:Notice — work schedule

• 173.01 (1) The employer shall provide an employee with their work schedule in writing at least 96 hours before the start of the employee’s first work period or shift under that schedule.

• Marginal note:Right to refuse

  (2) Subject to subsection (3), an employee may refuse to work any work period or shift in their schedule that starts within 96 hours from the time that the schedule is provided to them.

• Marginal note:Exception

  (3) An employee shall not refuse to work a work period or shift if it is necessary for them to work in order to deal with a situation that the employer could not have reasonably foreseen and that presents or could reasonably be expected to present an imminent or serious

  • (a) threat to the life, health or safety of any person;

  • (b) threat of damage to or loss of property; or

  • (c) threat of serious interference with the ordinary working of the employer’s industrial establishment.

• Marginal note:Exception — subsection 177.1(1)

  (4) Subsection (1) does not apply to a change to an employee’s work schedule following a request made under subsection 177.1(1).

• Marginal note:Prohibition

  (5) An employer shall not dismiss, suspend, lay off, demote or discipline an employee because the employee has refused to work a work period or shift under subsection (2) or take such a refusal into account in any decision to promote or train the employee.

• Marginal note:Non-application of subsection 196(4)

  (6) Subsection 196(4) does not apply in respect of a work period or shift that an employee refuses to work under subsection (2).

• Marginal note:Non-application — collective agreement

  (7) This section does not apply to employees who are employed under the terms of a collective agreement that specifies an alternate time frame for providing the work schedule or provides that this section does not apply to those employees.