This regulation sets out special rules for certain employees engaged in the mineral exploration industry and the mining industry. Currently, the regulation’s scope is limited to days free from work.

Section 1 – Definitions

O Reg 159/05 came into effect on March 31, 2005.

Defined industry

Section 1(1) defines two industries to which O Reg 159/05 applies: the "mineral exploration" industry and the "mining" industry. (Note, however, that by virtue of s. 2, the regulation applies only to certain employees in the industry.)

Mineral exploration

"Mineral exploration" is defined to mean prospecting, staking or exploration for minerals and related activities, and includes advanced exploration (such as the excavation of an exploratory shaft, adit or decline, the extraction of minerals for the purpose of proving a mineral deposit, and the installation of a mill for test purposes), and site rehabilitation. It should be noted that this is an inclusive definition rather than exhaustive. Other kinds of work might qualify as "related activities" to mineral exploration even though they are not listed in this s. 1 definition.

Mining

"Mining" is defined to mean the extraction, concentration and smelting of economic minerals from a mineral deposit for commercial purposes. "Mine" has a corresponding meaning.

Section 2 – Scope

Section 2 narrows the scope of O Reg 159/05, by restricting its application in the following ways:

  • To employees in the mineral exploration industry who work at sites of mineral exploration, subject to subsection (2). Subsection (2) states that an employee in the mineral exploration industry does not include an employee whose employer’s principal business is mining. The effect is to restrict the scope of O Reg 159/05 so that it does not apply to employees engaged in mineral exploration if the principal business of their employer is mining.
  • To employees in the mining industry who work at mines and who, during periods of consecutive days of work, do not live in their principal residences but instead are housed in temporary accommodation (e.g., bunkhouses, hotels, motels).
  • To employers of the employees so defined.

The terms "mineral exploration" and "mining" are both defined in s. 1 of O Reg 159/05.

Section 3 – Terms and conditions of employment

Section 3 simply states that O Reg 159/05 sets out terms and conditions of employment that apply to those employees and employers in the defined industries of mineral exploration and mining described in s. 2.

Section 4 – Days free from work

Application of ss. 4(2) and (3) - s. 4(1)

Section 4(1) of O Reg 159/05 provides that, where the employer and employee in the defined industry agree, ss. 4(2) and 4(3) apply instead of s. 18(4) of the Employment Standards Act, 2000:

There can be no substitution of ss. 4(2) and (3) of O Reg 159/05 for s. 18(4) of the Act unless the employer and employee (or union) agree. Agreements to substitute the rest period requirement in s. 4 of O Reg 159/05 for the requirement in s. 18(4) of the Act must be in writing in order to be valid. See ESA Part I, s. 1(3) and ESA Part 1, s. 1(3.1) for a full discussion of the requirements regarding written agreements.

Days free from work - s. 4(2)

Under s. 4(2) of O Reg 159/05, the requirement to provide a period of at least 24 consecutive hours free from performing work in every work week or at least 48 consecutive hours free from performing work in every period of two consecutive work weeks (under s. 18(4) of the Act), is replaced, if the employer and employee agree, by a provision that the employer not require or permit the employee to perform work on more than 28 consecutive days.

Determining days free from work - s. 4(3)

Subsection 4(3) of O Reg 159/05 then provides a formula for determining the days free from work that an employee is given following the work period of no more than 28 consecutive days, as follows:

  1. The number of days free from work will be equal to the number of consecutive days the employee worked, divided by three. For example, if the employee worked 21 consecutive days, he or she would be given seven days free from work.
  2. If the number of days off arrived at after dividing by three is a mixed number, then the result is "rounded up" to the next number. For example, if the employee worked 28 consecutive days under s. 4(2), applying the formula would give 9.33 days off, which would be rounded up to 10 days.
  3. If the employee is entitled to more than one day off, the days free from work will be taken consecutively.

Like s. 18(4) of the Act which it replaces, the maximum days of work permitted in s. 4(2) and the alternate rest period in s. 4(3) of O Reg 159/05 are employment standards as defined in s. 1(1) of the Act and cannot be contracted out of or waived (s. 5(1) of the Act). An employer and an employee (or union) cannot, for example, agree that the employee will work more than twenty-eight days in a row or take fewer consecutive days free from work than would be required under the s. 4(3) formula. Once an employer and employee (or union) in the defined industry have agreed to vary from the weekly/biweekly rest provisions in s. 18(4) of the Act and to substitute the provisions in s. 4 of O Reg 159/05, the employer cannot require or permit more consecutive days of work than 28 days in a row and the employee cannot be given fewer consecutive days free from work than outlined in the s. 4(3) formula. There is no "switching back and forth" between the requirements of s. 18(4) and the alternate rest periods provided in s. 4(3) of the Regulation as the Regulation operates in lieu of s. 18(4).

Interaction with other hours of work provisions

The requirement in s. 4(2) that the employer not require or permit the employee to perform work on more than 28 consecutive days and the formula in s. 4(3) for determining the days free from work that an employee is given following the work period of no more than 28 consecutive days, operate simultaneously with the hours of work provisions in Part VII of the Act, as follows:

1. Maximum daily hours

Section 17(1) of the ESA 2000 provides for maximum daily hours of work of eight hours per day or, if there is an established workday that is longer than eight hours, the number of hours in that work day. However, under s. 17(2) of the Act, employers and employees can agree, in writing, that the employee will work up to a specified number of hours in excess of the daily limit. For such an agreement to be valid, s. 17(5) requires that non-unionized employees first be provided with a copy of the Ministry of Labour’s information sheet on hours of work and overtime and that the agreement contains a statement by the employee acknowledging such receipt.

For further details about the maximum daily hours of work set out in s. 17(1); about agreements to vary from the maximum daily hours in s. 17(2); and about the requirement to provide the Ministry's information sheet as set out in s. 17(5), see ESA Part VII, s. 17.

2. Maximum weekly hours

Section 17(1) of the ESA 2000 provides for maximum weekly hours of work of 48 hours. However, under s. 17(3) of the Act, employers and employees can agree, in writing, that the employee will work up to a specified number of hours in excess of the weekly limit. For such an agreement to be valid, s. 17(5) requires that non-unionized employees first be provided with a copy of the Ministry of Labour's information sheet on hours of work and overtime and that the agreement contains a statement by the employee acknowledging such receipt.

For further details about the maximum weekly hours of work set out in s. 17(1); about agreements to vary from the maximum weekly hours in s. 17(3); and about the requirement to provide the Ministry's information sheet as set out in s. 17(5), see ESA Part VII, s. 17.

3. Daily rest

Section 18(1) of the ESA 2000 requires that an employee be free from performing work for a particular employer for a period of at least 11 consecutive hours in each day. This requirement is subject to s. 18(2) (on-call employees) and s. 19 (exceptional circumstances).

For a discussion of the daily rest requirement in s. 18(1) of the Act, see ESA Part VII, s. 18.

4. On-call exception

Section 18(2) of the ESA 2000 sets out an "on-call exception" to s. 18(1) of the Act.

Under s. 18(2), the requirement that an employee have at least 11 hours free from performing work in each day (in accordance with s. 18(1) of the Act) does not apply to an employee who is on call and is called in during a period he or she would not otherwise have been expected to work. The on-call exception is an exception only to the requirement to provide 11 consecutive hours free from work each day as per s. 18(1); it does not operate as an exception to any other hours of work provisions.

For a discussion of the on-call exception in s. 18(2) of the Act, see ESA Part VII, s. 18 of the Manual.

5. Free from work between shifts

Section 18(3) of the Act requires employers to provide employees with a minimum period free from work of eight hours between successive shifts, with two exceptions. First, an employee may work successive shifts without the eight-hour free period if the total number of hours worked on the successive shifts is 13 or less. Second, the employer and employee can agree, in writing, to forego the eight-hour period entirely or to reduce its length. For a discussion of the interaction of s. 18(3) with the required daily rest in s. 18(1) of the Act, see ESA Part VII, s. 18 of the Manual.

6. Exceptional circumstances

Section 19 of the ESA 2000 allows employers to require employees to work more daily or weekly hours than are permitted under s. 17 of the Act, or to work during a free period (daily, in between shifts and weekly or biweekly) as required by s. 18 of the Act (and s. 4 of O Reg 159/05) in any of the specified circumstances, but only so far as is necessary to avoid serious interference with the ordinary working of the employer’s establishment or operations.

For a discussion of the exceptional circumstances set out in s. 19 of the Act, see ESA Part VII, s. 19 of the Manual.

7. Eating periods

Under s. 20 of the ESA 2000, an employer is required to provide an eating period of at least 30 minutes, timed so that no employee works longer than five consecutive hours without receiving an eating period, or, if the employer and employee agree (not necessarily in writing), two eating periods that together total at least 30 minutes within the same period of five consecutive hours.

For further details about eating periods in s. 20 of the Act, see ESA Part VII, s. 20.