The Employment Standards Act is the law that contains basic rules about employing people and working. Both employees and employers have rights and responsibilities under the Act.
Does the Act cover all employees in Ontario?
Most employees are covered by the provincial legislation. However, employees working in industries that fall under Federal jurisdiction, such as, Post office, Banks, Railways, Radio stations, Airlines, Television stations etc. are not covered.
If you are member of the trade union and your contract of employment is governed by the collective agreement, you may not be covered by the Act.
If you are currently employed with the company, you may be able to file a claim with a request that your name not be disclosed. The Act protects you when you are exercising your rights under it.
Ontario Regulation 285/01, subsection 5(7) states:
For the purpose of determining whether an employee other than a student has been paid the minimum wage set out in subsection (1), (1.1), (1.2), (1.3), or (1.4), as the case may be, the employee shall be deemed to have worked for three hours if he or she,
(a) regularly works more than three hours a day;
(b) is required to present himself or herself for work; and works less than three hours.
This section requires that the employee must be paid for at least three hours at minimum wage even if he or she works less than three hours provided he or she is not a student. This requirement is only based on the fact that the employee regularly works more than three hours a day that he or she is required to report to work but does not include those who have reported to work even though they were not asked by the employer and that the employee works less than three hour.
In other words, the employer cannot pay less than three hours at minimum wage if the above conditions are satisfied.
It does not matter whether the employee worked on a regular work day or on a day that he or she normally does not work (provided he or she was required to present him or herself for work)
This three hour requirement does not restrict the employer to schedule the employee’s work hours less than three hours. It only requires if the employee normally works more than three hours but worked less than three hour on that day or the employee is required to work on a day that he or she normally does not work but ends up working less than three hours.
The requirement for payment of three hours does not mean that the employee is paid for three hours at regular rate but only at minimum wage or that he or she be paid regular rate for hours worked, whichever is greater.
The employee’s regular rate is $15.00/hour. The minimum wage is $10.25/hour. He works 1.5 hours on his regular day of work when he normally works more than three hours. The employer pays him $22.50 for that day at his regular rate.
This section requires the employer to pay him $30.75. Thus the employer owes the employee the difference, that is, $8.25.
The employee’s regular rate is $20.00/hour. The minimum wage is $10.25/hour. He was called to work on a day that he normally does not work. He worked 2 hours and sent home. The employer paid him $40.00 at his regular rate.
In this situation, the minimum wage required was $30.75 but he was paid $40.00. He can retain the difference since minimum wage is the minimum that he can be paid. The employer can always pay more than the minimum wage.
Ontario Regulation 285/01, subsection 5(8) states:
Subsection (7) does not apply if the employer is unable to provide work for the employee because of fire, lightening, power failure, storm or similar causes beyond the employer’s control that result in the stopping of work.
This section clarifies that the three hour rule does not apply under certain conditions that are beyond the control of an employer. In other words, if the employer is forced to stop work because of events beyond his control, he is not required to pay for three hours.
If you or the employer disagrees with the investigating officer’s decision, both parties have a right to appeal to Ontario Labour Relations Board within 30 days of the officer’s decision. The Board appoints a referee to hear the appeal. It does not cost the employee to request an appeal but the employer may be required to deposit monies in trust with the Ministry of Labour if it is found to be owing. The referee decision is final and binding on both parties.
This information is provided for guidance only and should not be considered as a legal advice.