This regulation sets out special rules for the terms and conditions of employment for employees engaged in the production of live performances (e.g., theatre, dance, comedy, etc.), trade shows and conventions. Currently, the regulation’s scope is limited to hours free from work.

Section 1 – Definitions

O Reg 160/05 came into effect on March 31, 2005.

Defined industry

Section 1 defines the industry to which O Reg 160/05 applies, to mean the industry of producing live performances of theatre, dance, comedy, musical productions, concerts and opera as well as trade shows and conventions.

Technical and production support

Section 1 defines "technical and production support" to include the following activities: stage and set construction, hair cutting and styling, the preparation and fitting of wigs and costumes, the preparation and application of make-up, the preparation and operation of lighting, sound and stage equipment and props, and stage management.

It should be noted that this is an inclusive definition rather than exhaustive. Other kinds of work might qualify as "technical and production support" even though they are not listed in this s. 1 definition.

Section 2 – Scope

The terms “defined industry” and “technical and production support” are both defined in s. 1 of O Reg 160/05.

Section 3 – Terms and conditions of employment

Section 3 simply states that O Reg 160/05 sets out terms and conditions of employment that apply to employers and employees in the defined industry of live performances, trade shows and conventions.

Section 4 – Hours free from work

Application of s. 4(1) - s. 4(1)

Section 4(1) of O Reg 160/05 provides that, where the employer and employee in the defined industry agree, s. 4(2) applies instead of s. 18(1) of the Employment Standards Act, 2000:

18(1) An employer shall give an employee a period of at least 11 consecutive hours free from performing work in each day.

Hours free from work - s. 4(2)

Under s. 4(2) of O Reg 160/05, the period of at least 11 consecutive hours free from performing work in each day (in s. 18(1) of the Act) is replaced by a period of at least eight consecutive hours free from performing work in each day. See ESA Part VII, s. 18(1) for a discussion of the meaning of "day".

There can be no substitution of s. 4(2) for s. 18(1) of the Act unless the employer and employee (or union) agree. An agreement to substitute the eight-hour daily rest period in s. 4(2) for the eleven-hour daily rest period in s. 18(1) of the Act must be in writing. See ESA Part I, s. 1(3) for a full discussion of the requirements regarding written agreements.

Like s. 18(1) of the Act which it replaces, the daily rest in s. 4(2) of O Reg 160/05 is an employment standard as defined in s. 1(1) of the Act and cannot be contracted out of or waived (s. 5(1)). An employer and employee (or union) in the defined industry could not, for example, agree to a six-hour daily rest period.

For a discussion of how the 11-hour daily rest operates, see s. 18(1) of the Act. (Substitute "eight hours" for "11 hours" each time it appears in order to understand the operation of the eight-hour daily rest period under s. 4(2) of O Reg 160/05.)

Interaction with other hours of work provisions

The requirement in s. 4(2) for at least eight consecutive hours off work in each day operates simultaneously with the hours of work provisions in Part VII of the Act, as follows:

1. On-call exception

Section 18(2) of the ESA 2000 sets out an "on-call exception" to s. 18(1) of the Act. This exception also applies if the daily rest period is eight consecutive hours as per s. 4(2) of O Reg 160/05, when it replaces the 11-hour daily rest requirement in s. 18(1) in the defined industry.

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) or at least eight hours free from performing work in each day (in accordance with s. 4(2) of O Reg 160/05) 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 or eight consecutive hours free from work each day as per s. 18(1) of the Act or s. 4(2) of O Reg 160/05. It does not operate as an exception to any other hours of work provisions.

For a discussion of the on-call exception, see s. 18(2) of the Act. Substitute s. 4(2) of O Reg 160/05 for s. 18(1) of the Act, and substitute eight hours for 11 hours, wherever the references appear.

2. 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, see ESA Part VII, s. 17(1); about agreements to vary from the maximum daily hours, see ESA Part VII, s. 17(2); and about the requirement to provide the Ministry's information sheet, see ESA Part VII, s. 17(5)

3. 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, see ESA Part VII, s. 17(1).; about agreements to vary from the maximum weekly hours, see ESA Part VII, s. 17(3); and about the requirement to provide the Ministry’s information sheet, see ESA Part VII, s. 17(5).

4. 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 s. 18(3).

Per s. 4 of O Reg 160/05, an employee and employer in the defined industry could agree in writing to a minimum daily rest of 8 hours (instead of the 11 hours in s. 18(1) of the Act). That employee could then agree in writing to work an eight and a 10-hour shift back to back, without any break between them. The agreement in writing would comply with s. 18(3) of the Act, but if it resulted in the employee receiving a daily rest of less than eight consecutive hours (per the agreement under s. 4 of O Reg 160/05), the schedule would be in violation of O Reg 160/05 and, therefore, would not be permitted. In other words, an employee in the defined industry cannot agree to work hours under s. 18(3) of the Act that would result in the employee getting less than the eight consecutive hours free from work each day stipulated in s. 4(2) of O Reg 160/05.

5. Weekly/biweekly rest periods

Section 18(4) of the ESA 2000 establishes weekly or bi-weekly free time requirements for employees. The free time periods must be at least either 24 consecutive hours in every "work week" or 48 consecutive hours in every two consecutive "work weeks".

See ESA Part VII, s. 18(4) for a discussion of the weekly/biweekly rest period provisions.

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(2) of O Reg 160/05) 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, see ESA Part VII, s. 19.

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, see ESA Part VII, s. 20.