This regulation sets out special rules regarding the terms and conditions of employment for employees employed in public transit services. Currently, the regulation’s scope is limited to hours free from work and eating periods.

Section 1 — Definitions

O Reg 390/05 came into effect on June 24, 2005.

Defined industry

Section 1(1) defines the industry to which O Reg 390/05 applies to mean the industry of providing public transit services.

Public transit services

"Public transit services" is defined to mean any fare-charging service for transporting the public by vehicles that are operated by or on behalf of a municipality or a local board, or under an agreement with a municipality or a local board.

Vehicle

The term "vehicle", which might be operated by the public transit service, is defined to include transportation facilities for the physically disabled, but not to include: vehicles and marine vessels for sightseeing tours, school buses, buses owned and operated by a corporation or organization solely for its own purposes without compensation for transportation, taxicabs, railway systems (whether incorporated under federal or provincial statutes), ferries, aviation systems or ambulances.

It should be noted that, in addition to listing these exceptions, the definition of "vehicle" is inclusive rather than exhaustive. Other kinds of vehicles (e.g., subway trains and street cars) might qualify as a vehicle operated by a public transit service even though they are not listed in this s. 1 definition, if they are not specifically excluded.

Section 2 — Scope

Section 2 narrows the scope of O Reg 390/05, by restricting it in its application to employees in the defined industry who operate public transit vehicles or who work as collectors and to their employers.

The terms “defined industry” and “vehicle” are both defined in s. 1 of O Reg 390/05.

Section 3 — Terms and conditions of employment

Section 3 simply states that O Reg 390/05 sets out terms and conditions of employment that apply to employers and employees in the defined industry of providing public transit services.

Section 4 — Hours free from work

Hours free From work — ss. 4(1) & (2)

Section 4(1) of O Reg 390/05 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. Section 18(1) reads as follows:

Under s. 4(2) of O Reg 390/05, 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. Agreements to substitute s. 4(2) for s. 18(1) of the Act must be in writing in order to be valid. See ESA Part I, s. 1(3) and s. 1(3.1) for a full discussion of the requirements regarding written agreements.

Like s. 18(1) of the Act which it replaces, the provision for daily rest in s. 4(2) of O Reg 390/05 is an employment standard as defined in s. 1(1) of the Act and cannot be contracted out of or waived (s. 5(1)). The employer and employee could not, for example, agree to a daily rest period of six hours.

For a discussion of how the 11-hour daily rest operates, see ESA Part VII, s. 18(1). Substitute "8 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 390/05.

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 together with the hours of work provisions in Part VII of the Act and s. 5 of O Reg 390/05, 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 390/05, 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 390/05) 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 390/05. It does not operate as an exception to any other hours of work provisions.

For a discussion of the on-call exception, see ESA Part VII, s. 18(2). Substitute s. 4(2) of O Reg 390/05 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, agreements to vary from the maximum daily hours and the requirement to provide the Ministry’s information sheet, see ESA Part VII, s. 17.

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 ESA 2000, 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, agreements to vary from the maximum weekly hours and the requirement to provide the Ministry's information sheet, see ESA Part VII, s. 17.

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 ESA Part VII, s. 18(3).

Per s. 4 of O Reg 390/05, an employee and employer in the defined industry could agree in writing to a minimum daily rest of eight 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 the Regulation), the schedule would be in violation of the Regulation 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 390/05.

5. Weekly/bi-weekly 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/bi-weekly 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 390/05) 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.

However, under s. 5 of O Reg 390/05, there are circumstances in which the eating periods provision of the ESA 2000 do not apply.

Section 5 — Eating periods

Section 5 of O Reg 390/05 provides that s. 20 of the Employment Standards Act, 2000 does not apply in certain circumstances.

Section 20 of the ESA 2000 states:

Under s. 20, 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.

Under s. 5 of O Reg 390/05, s. 20 of the Act does not apply to an employee who:

  1. Is working a straight shift, and who has chosen to work that shift;
  2. Is working a split shift that does not have a meal break that complies with s. 20, and who has chosen to work that shift; and
  3. Has chosen to work whatever shift the employer assigns and is working either a straight shift or split shift for which no meal break that complies with s. 20 of the Act is provided.

If an employee working a straight shift or a split shift did not either choose to work that shift or choose to work whatever shift the employer assigned, s. 20 would still apply and he or she would be entitled to a meal break in accordance with that section.

Note that, unlike the operation of s. 4 of O Reg 390/05, there is no requirement under s. 5 that the employer and employee (or union) agree that s. 5 of O Reg 390/05 will apply instead of s. 20 of the ESA 2000.