Canadian Employment Law Today

November 4, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Answer: Generally, employers do not have to compensate employees for being "on call" or on "standby" (terms commonly used in- terchangeably) if they do not perform any work. There are exceptions depending on the jurisdiction, the nature of the work and the existence of obligations under a collective agreement or an employment contract. It is important to differentiate "call in" (or "call back") to being on call. Call-in pay ensures that employees who report for work outside their normal schedules receive mini - mum compensation regardless of how much work is actually performed. Conversely, on- call pay is provided to compensate for the inconvenience of having to rearrange their lives to be available to return to work on short notice. In all Canadian jurisdictions, employment standards legislation requires employers to compensate employees for work performed. But that is different from being on call. The federal Labour Standards and Interpreta - tions, Policies and Guidelines — Canada La- bour Code, Part III – Division I – 802 – IPG – 002: [Hours of Work Interpretation Guide] differentiates "work" from "on-call" duty: "An employee who is on 'stand-by' or 'on-call' is away from the workplace and accessible to the employer when needed. When an employee is on 'stand-by' or 'on-call' they often are provided with a pager, cell phone or other form of electronic communication which allows them some range of mobility so they can be away from their residence and con - tinue to be available to the employer. While 'stand-by' or 'on-call' employees are common to many industries, the time spent waiting for a call is not considered work." The 2018 decision in Walker v. Alberta Communications Cable Services Inc. reaf- firmed that the employees are only entitled to pay for time worked and not time wait- ing to be called. SRJ Expedite Ltd. v. Paré is a good example of the application of this rule in a unionized context. The employee was grieving the lack of compensation for being on call after hours, but the arbitrator concluded that "a person who is available to work if needed, but is not in fact needed, is not working." The arbitrator also cited the example of a casual employee informing the employer of availability of work but not be - ing called in to work — with the employee not performing any work, there was no re- quirement to pay the employee. Likewise, in Bell v. LTS Solutions Inc., the ar- bitrator found that being on call with a com- pany cellphone and vehicle at home didn't mean the employee was at work, particularly since there was no discipline if the employee didn't respond to a call from the employer. The arbitrator added that "carrying a pager may be an inconvenience and remaining within the pager's range is undoubtedly so but this does not turn being on standby into work." However, this situation is changing. As of Jan. 1, 2019, Bill 148 changed Ontario's Em - ployment Standards Act and placed new ob- ligations on employers to pay certain on-call employees. If an employee is on call to work or is required to work but works less than three hours (despite being available to work longer), the employee is entitled to wages for at least three hours' pay if they worked less than that time. This on-call pay only applies once in a 24- hour period beginning at the start of when the employee must be on call, even if the employee is on call multiple times. The em - ployer is exempt from this requirement if the employee is on call for the purposes of ensur- ing the continued delivery of essential public services, regardless of who delivers those ser- vices, and the employee was not required to perform any work. Existing collective agree- ments take precedence over the new legisla- tion until the agreement expires. Other legislation more closely follows the general rule with the payment requirement depending on whether the on-call duty is considered "work." In British Columbia, an employee is deemed to be at work while on call at a location designated by the employer unless the designated location is the employ - ee's residence. This was affirmed in the B.C. Employment Tribunal decision Hands On Cart Wash Inc v. British Columbia (Director of Employment Standards). Nova Scotia's Minimum Wage Order (General) provides similar rules. The provi - sion specifies that "all time during which an employee waits for work on the premises of his or her employer at the request of the em- ployer shall be counted as time worked." In Annapolis Valley District Health Authority and N.S.G.E.U., the arbitrator determined the provision applied to employees who had to stay on site and on call during unpaid lunch breaks. Arbitrators recognize the restrictions placed on an employees' mobility and free - dom in determining whether on-call duties amount to work. For example, the arbitra- tor in Sunrise Health Region and HSAS (EMS standby), Re had to determine whether para- medics placed on standby in towns outside their customary "home base" were at work. "Lost is the luxury to sleep in one's own bed, visit with friends and family, and take care of matters left to be done when not on regular duty. The assignment to another lo - cation changes all of this," said the arbitrator in Sunrise Health. "While technically not on regular duty when assigned to stay in another location and be available to respond without undue delay to report to duty, one might as well be on regular duty (except of course one cannot sleep on regular duty)." Adjudicators recognize that employees can be expected to bear some inconvenience being on call without pay, especially so where employees are afforded the freedom to pursue reasonable day-to-day tasks and make it back to work in a reasonable time upon being called. It is when employers place greater restrictions on the freedom and mobility of their employees that arbitrators tend to intervene and label the standby duty as compensable work. Being on call at home is not considered work in Alberta, Manitoba, New Brunswick and Prince Edward Island; legislation does not define work, but the jurisprudence fol - lows the same analysis, the focus being on whether the assignment amounts to actual work. Although legislation does not generally re- quire on-call pay, with the exception of On- tario, there is common industry practice to pay for employees who are regularly on call. The rate is rarely as high as normal wages, but some compensation is often afforded to ac - count for the inconvenience of having to re- Have a question for our experts? Email jeffrey.smith@keymedia.com Ask an Expert STEWART MCKELVEY, HALIFAX with Brian Johnston Paying on-call employees Question: Does an employer have to pay an employee who is on call but not working? Canadian HR Reporter, 2020 2 | | November 4, 2020 November 4, 2020 NO WORK, NO PAY on page 7 »

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