Ontario Regulation 502/06 – Terms and conditions of employment in defined industries – Automobile manufacturing, automobile parts manufacturing, automobile parts warehousing and automobile marshalling
This regulation sets out special rules regarding the terms and conditions of employment for employees employed in the automobile manufacturing, automobile parts manufacturing, automobile parts warehousing and automobile marshalling industries. Currently, the regulation’s scope is limited to hours free from work and personal emergency leave.
Section 1 — Definitions
Definitions — s. 1(1)
O Reg 502/06 came into effect on November 3, 2006. Section 1(1) sets out the definitions for the purposes of the regulation.
Section 1(1) defines the industries to which O Reg 502/06 applies, to mean the industries of automobile manufacturing, automobile parts manufacturing, automobile parts warehousing, and automobile marshalling. See, however, O Reg 502/06, s. 2, which narrows the scope of application of the regulation to employees in the defined industries who are directly involved in the activities set out in the industry definitions.
Section 1(1) defines "automobile manufacturing" to mean assembling automobiles. Automobile has its regularly understood meaning, but also includes vans and trucks with a Gross Vehicle Weight Rating of 14,000 pounds (6350 kg) or less.
Section 1(1) defines "automobile marshalling" to mean the receiving of assembled automobiles from automobile manufacturers, storing the automobiles before delivery to purchasers or persons who sell to purchasers, organizing automobiles for delivery and arranging for delivery.
Automobile parts manufacturing
Section 1(1) defines "automobile parts manufacturing" to mean producing automobile parts that are supplied directly to employers in the automobile manufacturing industry or the automobile parts warehousing industry. It also includes producing elements of automobile parts that are supplied directly to automobile parts producers. An example of a part supplied to an automobile manufacturer might be a tire. An example of an element of a part supplied to parts manufacturer might be a rim that is supplied to the tire manufacturer. In the industry, those who produce parts supplied directly to automobile manufacturers are commonly called "Tier One" parts manufacturers, while those who produce elements of parts supplied to Tier One manufacturers are commonly called "Tier Two" parts manufacturers.
Automobile parts warehousing
"automobile parts warehousing" means receiving automobile parts from employers in the automobile parts manufacturing industry, storing the parts before delivery to employers in the automobile manufacturing industry, organizing them for delivery, and delivering them or arranging for delivery;
Section 1(1) defines "automobile parts warehousing" to mean receiving automobile parts from automobile parts manufacturers, storing the parts before delivery to employers in the automobile manufacturing industry, organizing the parts for delivery and delivering them or arranging for delivery.
Qualified Health Practitioner (Revoked)
Section 1(1) defines “qualified health practitioner” to mean a person who is qualified to practise as a physician (a medical doctor), a registered nurse or a psychologist either under the laws of Ontario or another jurisdiction in which care or treatment is being provided to the employee or a relative of the employee.
Where care or treatment is provided in Ontario:
- "A person who is qualified to practise as a physician" means a member of the College of Physicians and Surgeons of Ontario (this includes psychiatrists);
- "A person who is qualified to practise as a registered nurse" means, pursuant to O Reg 275/94 of the Nursing Act, 1991, SO 1991, c 32, a member of the College of Nurses of Ontario who holds a general or extended certificate of registration as a registered nurse (nurse practitioners hold extended certificates); and
- "A person who is qualified to practise as a psychologist" means an individual who is a member of the College of Psychologists of Ontario.
Where care or treatment is provided in a jurisdiction other than Ontario, the question of whether the person providing it is a “qualified health practitioner” is determined with reference to the laws of that other jurisdiction.
Definitions for the purposes of O Reg 502/06 — s. 1(2)
Section 1(2) states that for the purposes of O Reg 502/06, a person is employed in the defined industries if his or her employer engages in the activities as set out in the definition of automobile marshalling industry and the automobile parts warehousing industry, even if other activities constitute the majority of the employer’s activities. It similarly states that a person is employed in the automobile parts manufacturing industry if his or her employer produces any automobile parts or elements of automobile parts that are supplied as described in the definition of automobile parts manufacturing, even if the production of other things constitutes the majority of the employer’s production.
Section 2 — Scope
Section 2 narrows the scope of O Reg 502/06 by restricting its application to employees employed in the defined industries:
- Who are directly involved in any of the activities set out in the definition of the defined industry; or
- Whose attendance at the workplace during such activities is essential to the activity.
While generally it will be fairly obvious whether an employee is directly involved in an activity referred to in the industry definition, determining whether an employee who is not directly involved is nevertheless doing work that is essential to such an activity can be more difficult. Examples of employees who may be considered to be doing such work include:
- Skilled tradespeople or others involved in the maintenance or repair of equipment; and
- Employees who collect the debris from around the assembly lines in order to keep the lines running.
Examples of employees who would generally not be considered to be doing work that is essential to activity referred to in the industry definition include employees who:
- Work in the workplace cafeteria; or
- Work as a janitor/custodian.
Section 3 — Hours free from work
Hours free from work — ss. 3(1), (2) & (3)
Section 3(1) of O Reg 502/06 provides that, where the employer and employee in the defined industries agree, ss. 3(2) and (3) applies instead of s. 18(1) of the Employment Standards Act, 2000. Section 18(1) reads as follows:
Under ss. 3(2) and (3), if the employer and the employee (or bargaining agent representing employees) agree in writing, the daily rest period on one day in each work week may be shorter than eleven consecutive hours but must be at least eight consecutive hours. On all other days of the work week, the daily rest period must be at least eleven consecutive hours.
Like s. 18(1) of the Act, the daily rest requirements in s. 3(2) and s. 3(3) of O Reg 502/06 constitute an employment standard as defined in s. 1(1) of the Act and cannot be contracted out of or waived (s. 5(1)). For example, an employer and employee (or bargaining agent) in the defined industries could not agree to a six-hour daily rest period on one day in each work week or to have two days each work week with an eight-hour daily rest period.
For a discussion on how the 11-hour daily rest operates, see ESA Part VII, s. 18(1).
Interaction with other hours of work provisions
The requirement in s. 3(2) and s. 3(3) to allow for at least eight consecutive hours off work on one day in a work week and 11 consecutive hours off on all other days in that work week 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 for one day in the work week is between eight and 11 consecutive hours and 11 consecutive hours for all other days in the work week in accordance with s. 3(2) and s. 3(3) of O Reg 502/06.
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. 3(2) of O Reg 502/06) and at least eight hours free from performing work on one day each work week (in accordance with s. 3(3) of O Reg 502/06) 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. 3(2) and s. 3(3) of O Reg 502/06. 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).
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 about 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 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). For a discussion of agreements to work in excess of 48 hours per week, agreements to vary from the maximum weekly hours and about 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. 3 of O Reg 502/06, an employee and employer in the defined industry could agree in writing to a minimum daily rest of 8 eight hours on one day during each work week and 11 hours of daily rest on all other days in the work week (instead of the 11 hours in s. 18(1) of the Act). That employee could, under s. 18(3) of the Act, 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 on the one day or 11 consecutive hours on the other days in the work week (per the agreement under s. 3 of O Reg 502/06), the schedule would be in violation of O Reg 502/06 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 on one day and 11 consecutive hours free from work on all other days during the work week as stipulated in s. 3(2) and s. 3(3) of O Reg 502/06.
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/ 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. 3(2) and 3(3) of O Reg 502/06) 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.
Section 4 — Personal emergency leave (Revoked
Note that this section was revoked effective January 1, 2019. As of January 1, 2019, the provisions of s. 50 (sick leave), s. 50.0.1 (family responsibility leave) and s. 50.0.2 (bereavement leave) apply to employees within the defined industries as established by s. 1.
The discussion of this section — which established special rules relating to the now-repealed personal emergency leave standard that was formerly in s. 50 —– is being maintained in this publication since employees may still have a complaint relating to a situation that arose when section 4 was in force. The text appears in red to highlight that this section has been revoked.
Note that this text relates to s. 4 as it read from January 1, 2018 to December 31, 2018. (Section 4 read differently prior to January 1, 2018.)
Subsection 4(1) of O Reg 502/06 specifies that s. 4 creates special rules relating to personal emergency leave for employees employed in the defined industries.
For employees in the defined industries who are eligible for personal emergency leave, the special rules modify the number of days to which they are entitled and provides an exemption from the right to be paid for the first two days of personal emergency leave in each calendar year if certain criteria are met. All the other aspects of personal emergency leave will apply, such as the right of reinstatement to the same job after the leave, anti-reprisal protection and the requirement of the employer to continue benefit contributions, etc., as specified in ESA Part XIV, ss. 51-53 .
Like ESA Part XIV, s. 50, which it modifies, the provision for personal emergency leave in O Reg 502/06, s. 4 is an employment standard as defined in ESA Part I, s. 1(1) and cannot be contracted out of or waived as per ESA Part III, s. 5(1). However, this prohibition is subject to the greater right or benefit provision established by ESA Part III, s. 5(2). Accordingly, an employment standard need not be complied with if the employee is receiving a greater right or benefit with respect to that particular standard. The principle that applies in making the determination is the same principle that governs in any greater right or benefit determination, i.e., do the relevant contractual provisions, taken in their entirety, give the employee a better deal than the corresponding employment standard taken in its entirety.
If an employer’s benefit is considered a greater right or benefit than that created under O Reg 502/06 it will be enforced by the Program. For more information on the greater right or benefit analysis, see ESA Part III, s. 5(2) and the specific commentary on greater right or benefit in the context of personal emergency leave.
Note that if an employer offers a benefit plan for sick days, bereavement days, etc., and the employee opts to claim benefits under that plan, it is Program policy that the employee has in effect designated the absence also as a personal emergency leave day (unless the employee is also entitled to another leave under the Employment Standards Act, 2000, e.g., domestic or sexual violence leave. In that case, the employee is free to decide which leave to designate) and it will reduce the employee’s personal emergency leave entitlement accordingly. For example, if an employer offers three paid sick days under a benefits plan and the employee is absent three days because of the flu and claims benefits under the plan, the employee is considered to have used three of their personal emergency leave days.
Note also that there is nothing in the ESA 2000 or O Reg 502/06 that would prohibit an employer from subtracting any personal emergency leave days that are taken from any paid days provided by a benefit plan offered by an employer. Notably, while this is not prohibited under the ESA 2000, an employment contract may address the issue of whether any personal emergency days count against any contractual leave entitlements.
Employees in the defined industries are entitled to a maximum limit of seven days of personal emergency leave per calendar year as a result of any of the events in paragraphs 1, 2 and 3 occurring. The triggering events are the same as those established in ESA Part XIV, s. 50. For more information regarding the definition of a “personal illness, injury or medical emergency” or “urgent matter”, please refer to ESA Part XIV, s. 50(1), paras. 1 to 3.
The question arises as to whether the seven day entitlement should be prorated for employees who started their employment partway through a calendar year. As per ESA Part XIV, s. 50, which it modifies, there is nothing in O Reg 502/06, s. 4 to suggest that employees who are eligible for personal emergency leave should be entitled to less than seven days a calendar year in this situation. Accordingly, it is Program policy that there should be no pro-rating of the seven day entitlement.
In addition to the entitlement of up to seven days of personal emergency leave within a calendar year because of personal illness, injury or medical emergency, or the illness, injury, medical emergency or urgent matter of a specified list of relatives, employees are entitled to take personal emergency leave of up to 3 days because of the death of a person described in paragraphs 1 to 7 of s. 4(4). Note that as in the general personal emergency leave provisions outlined in ESA Part XIV, s. 50, this group of relatives does not include an uncle or an aunt of the employee, unless that individual is dependent on the employee for care and assistance.
The entitlement to a leave “because of the death of an individual” is up to three days per incident: if an employee’s brother and parent died in the same calendar year, the employee would be entitled to up to six days of unpaid personal emergency leave. If the same employee had a health crisis and needed to take seven days of leave due to a medical emergency, they would be entitled to a total of 13 days of personal emergency leave within a calendar year, instead of the 10 days that the employee would have normally been entitled to per ESA Part XIV, s. 50. If no death of any person described in s. 4(4) occurs within a calendar year, the maximum entitlement to personal emergency leave for reasons other than a death as specified in s. 4(2) is seven days. The employee would not be entitled to “use” the bereavement portion of the personal emergency leave for any other purpose than the death of an individual described in s. 4(4).
This subsection defines the group of individuals who will be considered a “relative” for the purposes of O Reg 502/06. It is identical to the list of relatives found at ESA Part XIV, s. 50(2).
Sections 4(5) & (6)
Subsection 4(5) requires employees to notify their employers ahead of time that they will be taking personal emergency leave. If the employee is not able to provide notice before taking the leave, they will be required to notify the employer “as soon as possible” after commencing the leave. The same requirements exist in relation to the general provisions of personal emergency leave at ESA Part XIV, s. 50; similarly, the Program takes the position that if an employee fails to provide notice to the employer (either before or after starting the leave), the entitlement to the leave will not be invalidated. For more information on these sections, please see the commentary at ESA Part XIV, s. 50(3).
Sections 4(7), (8) and (9)
4(9) The two days of paid leave mentioned in subsection (7) must be taken first in a calendar year before any of the days of unpaid leave can be taken under this section.
Subsections (7), (8) and (9) are nearly identical to ESA Part XIV, ss. 50(5), (6) and (8). Subsection 4(7) specifies that the first two days of personal emergency leave taken in the calendar year must be paid, while the remainder of the days taken are unpaid. Subsection 4(8) establishes the rule for new employees who have been employed by the employer for less than one week, and s. 4(9) clarifies that the paid days of leave are to be taken before the unpaid days in a calendar year in the case of employees who have been employed for one week or longer. See the commentary at ESA Part XIV, s. 50(5), s. 50(6) and s. 50(8).
Subsection 4(10) provides a special rule that applies when a contract of employment contains particular terms. If the contract of employment provides for any of the entitlements in ss. 4(1) paragraphs 1(i), 1(ii) or 1(iii), then the employer is not obligated to pay the employee for the first two days of personal emergency leave taken within a calendar year.
Note that the contract of employment may contain “two or more days as one or more of the following”, meaning that the contract can “mix and match”, and meet the requirement by providing one extra day of vacation and one personal sick day, for example. At least two days in total must be given by the contract, but they can be any combination of vacation, holiday or days for personal illness/personal medical appointments so long as they are paid in accordance with s. 4(10) paragraph 2.
Section 4(10) paragraph 1(i) refers to paid vacation days in excess of the basic entitlements of ESA Part XI. If a contractual entitlement provides something less than what an employee would get under ESA Part XI in terms of the number of days (for example, a paid vacation day subject to a “use it or lose it” requirement), then it will not meet the requirements of s. 4(10) paragraph 1(i) and the employee will be entitled to paid personal emergency leave.
Section 4(1) paragraph 1(ii) refers to “holidays in excess of the employee’s entitlement under Part X of the Act”. This may include additional holidays that are not defined public holidays under the ESA 2000, such as the August Civic holiday or Remembrance Day, or company holidays, for example, when an employer shuts down operations between Christmas Day and New Year’s Day, or provides an additional company-wide holiday on the Friday before a public holiday under the ESA 2000. However, for an employer to rely on s. 4(10) paragraph 1(ii), note that the employee must be paid at least the amount specified in s.4 (10) paragraph 2.
Days off for personal illness or personal medical appointments
If the contract of employment contains one or more days for the employee to take a day off due to personal illness or to attend a personal medical appointment, and the day is paid in accordance with s. 4(10) paragraph 2, the employee will not be entitled to paid personal emergency leave. In order to qualify, the day or days provided by the contract of employment must include personal illness or a personal medical appointment as a valid use, but can include other purposes (for example, for the illness of a child or for a non-medical use).
Amount employee must be paid in order for a day under s. 4(10)(1) to qualify for special rule
If an employment contract provides for excess vacation days, company holidays or personal illness days, the employer will not be able to rely on the exemption from paid days of personal emergency leave unless the days provided by the contract are paid. Section 4(10) paragraph 2 specifies how much the employee must be paid for these days in order for them to qualify, and the approach is similar to that taken for the calculation of public holiday pay. The amount of pay for the day must be something similar to what the employee would be paid for a regular day of work: it must be no less than the regular wages earned in the pay period before the day (whether it is a company holiday, vacation day, or personal illness day) divided by the number of days the employee worked in that period.
As “regular wages” is a defined term and does not include vacation pay, if the employee is on vacation for the entire pay period preceding the day, then the amount the employee must be paid will be based on the regular wages earned in pay period prior to the vacation.
This subsection clarifies that if an employee is not entitled to be paid for the first two days of personal emergency leave taken in the calendar year because the employee’s contract of employment contains at least two of the days described in s. 4(10), the employee still has the right to take personal emergency leave without pay.
This subsection allows the employer to count any part of a day taken as personal emergency leave as a full day for the purpose of determining how much leave an employee has taken, and how much leave they have remaining in a calendar year. The employer is not obligated to do so: for example, if an employee takes half of a day to attend a funeral of a relative who meets any of the requirements determined by O Reg 502/06, the employer may either consider the employee to have taken the exact number of hours the employee was absent, or the entire day. If the employer chooses to designate the absence as a full day of personal emergency leave, the employee would, of course, remain entitled to be paid wages for any hours actually worked on the day of deemed leave. If the day of leave was one of the first two taken in the calendar year, the employee would be entitled to be paid personal emergency leave pay only for the hours taken as leave.
This subsection is identical to ESA Part XIV, s. 50(7) — refer to commentary on that section for more information.
This subsection defines the amount of personal emergency leave pay an employee who is eligible for paid leave is entitled to.
Subsection 4(13) is identical to the provisions of ESA Part XIV, s. 50(9). For more information on this section and examples of personal emergency leave pay calculation, please see the commentary at ESA Part XIV, s. 50(9).
Sections 4(14) and (15)
Subsection 4(14) excludes overtime pay or a shift premium (for example, an extra amount paid for working evenings or weekends) from inclusion when calculating personal emergency leave pay. The employee would be entitled to be paid for hours of personal emergency leave using their regular rate of pay, and not for example 1.5 times their regular rate per the overtime provisions of the ESA 2000.
Under ESA Part X Public Holidays, employees who agree to, or are required to work on a public holiday may be entitled to receive premium pay of at least one and one half times their regular rate for hours worked on that day. The effect of this subsection is that, despite the entitlement in s. 4(13) to be paid “the wages the employee would have earned had they not taken the leave”, the employee is not entitled to any premium pay that they would have earned by working on the public holiday had the leave not been taken.
Subsections 4(14) and (15) are identical to the provisions of ESA Part XIV, s. 50(10) and (11). For more information on these sections and examples of personal emergency leave pay calculations involving overtime pay and shift premiums, see the commentary at ESA Part XIV, s. 50(10) and for examples of personal emergency leave pay calculations involving public holiday premium pay, see the commentary at ESA Part XIV, s. 50(11).
Section 4(16) and (17)
These subsections are identical to ESA Part XIV, s. 50(12) and (13) — refer to "personal emergency leave" commentary on those sections for more information.