Did you know that the Employment Standard Act (ESA) applies to work performed outside Ontario that is a continuation of work performed in Ontario?
And did you know that employees are entitled to be paid for travel time in some cases? In this regard, one adjudicator has stated:
[…] there is a qualitative difference between […] the time it takes to travel from one’s home to one’s place of work, and the time one travels on the employer’s business. The latter is compensable as time worked, while the former is not.”
Accordingly, for employees who travel outside Ontario as part of their job, is your organization complying with the ESA?
For example, a non-managerial employee travelling to Manitoba, Saskachewan, Alberta or British Columbia is generally entitled to overtime pay after 8 hours in a day (as opposed to after 44 in a week which is the minimum standard in Ontario)? In this regard, section 5 (2) of the ESA states:
If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.
In this example, is your organization paying the greater overtime benefit?
For employees travelling outside Ontario, an employer can by contract minimize the additional compensation that the employee is owed because of a more generous employment standard. Alternatively, in some provinces the employer can apply to exempt the employee from a minimum standard.
Lessons to be learned:
- If an employee is travelling to another province, are the employment standards in that province greater than in Ontario?
- If not, what can be done to minimize any additional costs that are associated with a higher minimum standard? In particular, do you need to enter into a contract with the employee to address out of province work?
- Do you need to apply for (i) a permit or (ii) an exemption to avoid the higher employment standard in the other province?
Doug MacLeod
MacLeod Law Firm: Employment and Labour Lawyers
Doug MacLeod, MacLeod Law Firm
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