Part XVII - Retail business establishments

The provisions found in Part XVII (Retail Business Establishments) of the Employment Standards Act, 2000 set out the rights of employees working in most retail business establishments to refuse to work on holidays and Sundays.

Section 72 - Application of part

Application - s. 72(1)

Section 72(1) is similar to s. 50(1) of the former Employment Standards Act. Section 72(1) provides that the application of Part XVII is limited to retail business establishments as defined in the Retail Business Holidays Act, RSO 1990, c R.30 ("RBHA"), employees who work in these establishments, and employers of these employees. However, s. 72(1) must be read subject to the exemptions in s. 72(2).

"Retail business establishment" is defined in the RBHA in s. 1(1) as follows:

An exhaustive list of what constitutes retail business establishments could not possibly be created, as many types of businesses are covered: clothing stores, department stores, supermarkets, pharmacies, laundromats, gas stations, car rental agencies, to name a few. In each case, a determination must be made: are goods or services being sold or offered for sale by retail?

The employees in those retail business establishments described in s. 72(1) - and not exempted under s. 72(2) - will have rights to refuse Sunday and holiday work, even if they are employed in businesses that are allowed to open on holidays under the exemptions in s. 3 of the RBHA, under tourism exemption by-laws prescribed under the RBHA, and employees in stores that open illegally on a holiday, in contravention of the RBHA.

All such employees are covered, both full-time and part-time, including non-sales workers such as cleaners, managers and security guards.

Although supervisors and managers may be excluded from Part VII's Hours of Work provisions by virtue of s. 4(1)(b) of O Reg 285/01 (Exemptions, Special Rules and Establishment of Minimum Wage), this exclusion does not mean that they can be required to work on a Sunday or holiday. If they refuse to work on a Sunday or holiday, then they can only be required to work during the remaining days of the week, although the maximum number of hours to be worked on those days is not governed by the Employment Standards Act, 2000.

Security guards are often employed by a security service, which then assigns them to a retail business establishment. Such employees also have the right to refuse to work as this Part applies to "employees . . . in . . . [retail business] establishments".

A shopping mall is a "retail business establishment". Therefore, its employees also have the rights set out in this Part; such employees include the cleaning staff, security guards who patrol the common areas of the mall, the people at the coat check and gift-wrapping services, and the person who works in the information booth.

When a store is closed, it is still a "retail business establishment" even though it is not selling goods or services to the public at that particular time; a retail business establishment is a "retail business establishment" all the time, whether open or closed. Therefore, this Part will apply and an employee may avail himself or herself of the right to refuse to work if asked to do so when the store is closed: for example, if the employer wants to take inventory or reorganize the store.

Exception - s. 72(2)

Section 72(2) is virtually identical to s. 50(2) of the former Employment Standards Act. Section 72(2) describes hospitality-industry businesses, which are exempt from the provisions of this Part as follows:

1. Sells prepared meals - s. 72(2)(a)

Such businesses include restaurants, cafeterias and cafés.

2.Rents living accommodations - s. 72(2)(b)

Such businesses include hotels, motels, motor lodges, inns, and tourist resorts and camps.

3. Is open to the public for educational, recreational or amusement purposes - s. 72(2)(c)

Such businesses include museums, art galleries, sports stadiums and arenas, video arcades, theatres, movie theatres, zoos, amusement parks, bars, taverns and nightclubs.

4. Sells goods or services incidental to a business described in clause (a), (b) or (c) and that is located in the same premises as the business - s. 72(2)(d)

Employees of a business that merely sells goods or services are usually not exempt from this Part. However, if the business selling goods or services is incidental to one of the enumerated businesses in ss. 72(2)(a), (b) or (c), and is located in the same premises as that business, s. 72(2)(d) exempts its employees. Such businesses would include a gift shop in a museum, or a souvenir store in a hotel lobby or a sports stadium.

With the exception of s. 72(2)(d), the exemptions in s. 72(2) only apply to establishments whose primary retail business is one of those enumerated. Thus, for example, employees at a cafeteria in a department store, or the counter in a supermarket that sells ready-to-eat meals, would not be exempted as the primary business of the department store or the supermarket is not the sale of prepared meals. Such employees would still enjoy the rights prescribed by this Part.

The hospitality industry is exempted because of the nature of the industry. The hospitality industry is one of the corner-stones of the provincial economy, and it has been identified as having special needs that require business operations to continue throughout the week.

Section 73 - Right to refuse work

Right to refuse work - s. 73(1)

Section 73(1) is similar in effect to s. 50.2(l)(b) of the former Employment Standards Act. Section 73(1) provides that employees who work in retail business establishments covered under Part XVII have the right to refuse to work on public holidays as listed in s. 1 of the Employment Standards Act, 2000 (including Family Day prescribed by s. 1.1 of O Reg 285/01 as a public holiday) and on any day declared by the Lieutenant Governor to be a holiday for the purposes of the Retail Business Holidays Act, RSO 1990, c R.30. At the time of writing, no other holiday had been proclaimed by the Lieutenant Governor.

An employee does not have to give any reason for refusing to work on a holiday.

Employers who are permitted to open on public holidays cannot avoid the application of s. 73(1) through hiring practices for new employees that include stipulations or understandings that public holidays are regular days of work; once hired, the employee’s right to refuse to work on a public holiday is absolute. Note that as the provision applies only to persons already working at an establishment, i.e., because it applies to "employees", a person cannot make a complaint under the Act if he or she has not been hired because of a refusal to work on holidays. However, such a person may have legitimate grounds for a complaint under the Human Rights Code, RSO 1990, c H.19 and should be referred to the Ontario Human Rights Commission.

An issue has arisen as to whether an employee who has given up the right to refuse Sunday work (pursuant to s. 10 of O Reg 285/01 - see the discussion at O Reg 285/01 s. 10) has by doing so also given up the right to refuse to work on a public holiday where the public holiday falls on a Sunday. It is Program policy that the answer to this question is no. The right to refuse Sunday work and the right to refuse work on public holidays are two separate rights, although they may sometimes overlap. An employee may give up the right to refuse Sunday work, but the employee continues to have the right to refuse work on any public holiday. Accordingly, an employee who gave up the right to refuse Sunday work will have the right to refuse to work on a public holiday where the public holiday falls on a Sunday.

Beyond the s. 73 rights to refuse work on Sundays and holidays, there is no general right under the Act of an employee to refuse to work on a particular day. However, if an employee refuses to work any other day because of bona fide religious beliefs, for example, he or she may have a complaint under the Human Rights Code. If such is the case, the employee should be referred to the Human Rights Commission.

Same - s. 73(2)

Section 73(2) is similar in effect to s. 50.2(l)(a) of the former Employment Standards Act in permitting retail employees to refuse Sunday work. However, the right to refuse Sunday work under the former Act was absolute, whereas the right to refuse Sunday work in s. 73(2) of the ESA 2000 is subject to the exception set out in s. 10 of O Reg 285/01 as follows:

Section 10(1) of O Reg 285/01 states that even though retail employees have the right to refuse to work on Sundays under s. 73(2) of the Act, an employee loses this right if he or she had agreed to work on Sundays at the time he or she was hired by an employer. In accordance with s. 1(3) of the ESA 2000, an agreement made at the time of hiring to work on Sundays must be in writing. The exception created by s. 10(1) only applies to such agreements made on or after September 4, 2001 (the date the ESA, 2000 came into effect). Sunday work agreements made prior to the date of proclamation of the ESA 2000, will not be affected by s. 10(1) of O Reg 285/01.

An employee who is hired on or after September 4, 2001, who did not enter into an agreement at the time of hire to work on Sundays, will be able to decline work on Sundays. In addition, the fact that an employee establishes a pattern of working all, many or few Sundays does not compromise his or her right to refuse to work if there was no agreement to work Sundays made at the time of hiring.

Under s. 10(2) of O Reg 285/01, it is possible for an employee hired on or after September 4, 2001 to enter into an agreement at the time of hiring and yet subsequently refuse to work Sundays for religious reasons, provided the employee gives the appropriate 48 hours' notice before the commencement of each Sunday shift. Further information on the notice provisions is contained in the discussion of s. 73(3) below.

Section 10(3) of O Reg 285/01 prohibits an employer from making an agreement to work Sundays a prerequisite to hiring an employee where this requirement would be contrary to the "adverse effect" discrimination provisions contained in s. 11 of the Human Rights Code. "Adverse effect" or constructive discrimination can occur when a workplace practice unintentionally singles out particular persons, which results in their unequal treatment. An employer can, however, establish Sunday work as a condition of employment, provided it is not in violation of this section of the Human Rights Code.

As previously noted, the right to refuse Sunday work under s. 73(2) applies only to persons already working at an establishment (i.e., "an employee"), and therefore a person cannot make a complaint under the Act if he or she has not been hired because of a refusal to work on Sundays. The person may, however, have grounds for a complaint under the Human Rights Code and should be referred to Ontario’s Human Rights Legal Support Centre.

Finally, beyond the s. 73 rights to refuse work on Sundays and holidays, there is no general right under the Act of an employee to refuse to work on a particular day. However, if an employee refuses to work any other day because of bona fide religious beliefs, for example, he or she may have a complaint under the Human Rights Code. If such is the case, the employee should be referred to Ontario’s Human Rights Legal Support Centre.

Notice of refusal - s. 73(3)

Section 73(3) is similar in effect to s. 50.2(2) of the former Employment Standards Act. Section 73(3) provides that an employee who has agreed to work on a Sunday or holiday can subsequently decline to work, provided he or she notifies the employer 48 hours before he or she was to commence work that day.

However, the ability to refuse Sunday work with 48 hours' notice is subject to s. 10 of O Reg 285/01, which precludes employees who had agreed at the time of hiring (on or after September 4, 2001) from refusing to work Sundays except where the employee declines to work on the Sunday for religious reasons (s. 10(2) of O Reg 285/01), or where the agreement to work Sundays was a condition of being hired and such condition would be contrary to section 11 of the Human Rights Code (s. 10(3) of O Reg 285/01). In other words, an employee who had agreed at the time of hiring (on or after September 4, 2001) to work on Sundays could not subsequently refuse to work by providing 48 hours' notice of the refusal, unless s. 10(2) or s. 10(3) of O Reg 285/01 applied.^{footnote 6[6]}

The notice provision ensures that employees can exercise their rights of refusal while enabling the employer to find replacement employees. At the same time, the notice provision is sufficiently short that an employee with a sudden need for a period free from work on a public holiday or on a Sunday is not denied the right to refuse.

If an employee has previously agreed to work on a public holiday or a Sunday, he or she may subsequently refuse to work only if 48 hours’ notice is given as required by this section (and subject to the limitation on refusing Sunday work established by s. 10 of O Reg 285/01). If the employee gives less than 48 hours' notice or does not give notice at all, and he or she is penalized in some way for the refusal, then the employee has no recourse under the Act, even where the refusal was for religious reasons.

The notice to decline public holiday or Sunday work does not need to be in writing. Although not necessary, a written notice is of course preferable for evidence purposes in case of a claim.