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O. Reg. 291/01: TERMS AND CONDITIONS OF EMPLOYMENT IN DEFINED INDUSTRIES

under Employment Standards Act, 2000, S.O. 2000, c. 41

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Employment Standards Act, 2000

ONTARIO REGULATION 291/01

TERMS AND CONDITIONS OF EMPLOYMENT IN DEFINED INDUSTRIES

Historical version for the period September 30, 2005 to December 20, 2007.

Last amendment: O. Reg. 530/05.

This is the English version of a bilingual regulation.

Definitions

1. In this Regulation,

“defined industries” means the women’s coat and suit industry and the women’s dress and sportswear industry; (“industries définies”)

“fur industry” means all work done in the manufacture, repair or remodelling, in whole or in part, of coats, jackets, similar garments, neck-pieces, cuffs and other pieces made of fur (not including imitation or simulated fur), except work done on the employer’s premises by only one person; (“industrie de la fourrure”)

“industry holiday” means,

(a) New Year’s Day,

(b) Good Friday,

(c) Victoria Day,

(d) Canada Day,

(e) Labour Day,

(f) Thanksgiving Day,

(g) Christmas Day, and

(h) Boxing Day, being December 26 or the Monday next following when Christmas falls on a Saturday; (“jour férié dans l’industrie”)

“piece-work basis”, in relation to how an employee is paid, means payment based on the number of articles or things that are manufactured, prepared, improved, repaired, altered, assembled or completed; (“à la pièce”)

“special rate work” means,

(a) in relation to an employee who is not a homeworker, work described in clause 11 (1) (a), and

(b) in relation to a homeworker, work described in clause 11 (1) (b); (“travail à taux spécial”)

“women’s coat and suit industry” means all work done in the manufacture anywhere in Ontario, in whole or in part, of cloaks, coats, suits, wraps, wind-breakers, skirts manufactured for use as part of a suit, jackets or blazers, manufactured from any material including suede, leather, simulated, synthetic, pile and fur fabrics, of any description, for female persons of all ages, but does not include work done in,

(a) the manufacture of,

(i) ski-suits or skating suits, in whole or in part,

(ii) athletic uniforms, in whole or in part,

(iii) riding-coats, or

(iv) lounging-robes, bathrobes, kimonos, pyjamas or beach wraps,

(b) the making of cloaks, coats, suits, wraps, wind-breakers, skirts manufactured for use as part of a suit, jackets or blazers, manufactured from any material including suede, leather, simulated, synthetic, pile and fur fabrics, of any description, for female persons of all ages by a custom tailor, who,

(i) makes cloaks, coats, suits, wraps, wind-breakers, skirts manufactured for use as part of a suit, jackets or blazers individually for a retail customer, according to the measurements and specifications of the retail customer, and

(ii) does not employ more than four persons in making cloaks, coats, suits, wraps, wind-breakers, skirts manufactured for use as part of a suit, jackets or blazers, or

(c) the receiving, warehousing, shipping or distributing of raw materials or manufactured products or in sales, design or administrative operations; (“industrie des manteaux et tailleurs pour dames”)

“women’s dress and sportswear industry” means all work done in the manufacture in whole or in part of all types, kinds and styles of garments worn by female persons and includes, without limiting the generality of the foregoing, garments commonly known as dresses, gowns, sportswear, play clothes, skirts, trousers, pants, slacks, blouses, tops, vestees, at-home wear, pantsuits and jumpsuits, but does not include work done in a separate manufacturing area in,

(a) the manufacture of garments for female persons not over 14 years of age or of a size up to and including girls’ Canada Standard Size 14,

(b) the making of such garments by a custom dressmaker or custom manufacturer who,

(i) makes such garments individually for retail customers with whom the dressmaker or manufacturer deals directly according to the measurements and specifications of the retail customers, and

(ii) does not employ more than four persons in making such garments,

(c) the manufacture of garments in the women’s coat and suit industry,

(d) the manufacture of garments in the fur industry,

(e) the manufacture of undergarments and lingerie, namely, brassieres, slips, half-slips, panties, girdles and corsets,

(f) the manufacture of sleepwear, namely, garments intended to be and worn as sleeping garments, including peignoir sets consisting of an undergarment worn as a sleeping garment and an overgarment made of lightweight fabric,

(g) the manufacture of utility garments, namely, bathrobes, kimonos, housecoats, brunchcoats and terry cloth gowns, for utilitarian purposes and of a design, colour and pattern distinct from and not worn in conjunction with any other garment made by the manufacturer doing work within the designation or made by or for another manufacturer doing work within the designation or with whom such manufacturer is associated directly or indirectly in any manner whatsoever,

(h) the manufacture of cloth and fabric, including the spinning of yarn and knitting of fabric,

(i) the manufacture of such garments made from knitted material by a knitwear manufacturer who,

(i) makes available to the Director on request, during reasonable business hours, all of the records pertaining to garments and material produced, purchased and sold by the manufacturer,

(ii) manufactures such garments and the knitted material on the same premises, and

(iii) does not manufacture such garments for another manufacturer doing work within the designation or with whom such manufacturer is associated directly or indirectly in any manner whatsoever,

(j) the manufacture of blouses, defined as a woman’s tailored garment of a maximum length of 26 inches measured from the middle of the collar and of design, colour and pattern distinct from and not intended to be worn in conjunction with any other garments made by or for the manufacturer or made by or for a manufacturer with whom the manufacturer is associated directly or indirectly,

(k) the manufacture of bathing suits, knitted sweaters or any style of apron, or

(l) the receiving, warehousing, shipping or distributing of raw materials or manufactured products or in sales, design or administrative operations. (“industrie des robes et des vêtements de sport pour dames”) O. Reg. 291/01, s. 1.

Terms and conditions of employment

2. (1) This Regulation sets out the terms and conditions of employment that apply to employees and employers in the defined industries. O. Reg. 291/01, s. 2 (1).

(2) Except as modified by this Regulation, the Act applies to employers and employees in the defined industries. O. Reg. 291/01, s. 2 (2).

Minimum pay for short periods of work

3. (1) Despite subsection 5 (7) of Ontario Regulation 285/01 (Exemptions, Special Rules and Establishment of Minimum Wage), if an employee is required to work for a period of less than four hours or is required to report to work but does not work any hours, the employee shall be deemed to have worked four hours and the employer shall pay the employee accordingly. O. Reg. 291/01, s. 3 (1).

(2) This section does not apply to homeworkers. O. Reg. 291/01, s. 3 (2).

Non-application of ss. 18 to 21 of Act

4. Sections 18 to 21 of the Act do not apply with respect to employees in the defined industries. O. Reg. 291/01, s. 4.

When an employee may not be required to work

5. (1) An employer shall not require or allow an employee to perform work,

(a) on an industry holiday; or

(b) between midnight and 6:00 a.m. O. Reg. 291/01, s. 5 (1).

(2) Subsection (1) applies despite any agreement under subsection 17 (2) of the Act. O. Reg. 291/01, s. 5 (2).

Normal work day and normal work week

6. (1) An employee’s normal work day shall not exceed 8 hours, including paid breaks but not including eating periods. O. Reg. 291/01, s. 6 (1).

(2) A normal work day shall not be on a Saturday or Sunday. O. Reg. 291/01, s. 6 (2).

(3) An employee’s normal work week shall not exceed 40 hours, including paid breaks but not including eating periods. O. Reg. 291/01, s. 6 (3).

(4) A normal work week is determined on the basis of the period from midnight on Saturday to midnight on the following Saturday. O. Reg. 291/01, s. 6 (4).

Normal work day under work schedule

7. (1) If an employer establishes a work schedule in accordance with sections 8 and 9 and satisfies the requirements in those sections, an employee’s normal work day is determined under the work schedule and not under section 10. O. Reg. 291/01, s. 7 (1).

(2) This section does not apply to homeworkers. O. Reg. 291/01, s. 7 (2).

Work schedule

8. The following apply with respect to an employer’s work schedule:

1. The work schedule shall set out the starting time of the normal work day for all employees.

2. If the work schedule provides for a single shift, a normal work day shall not begin after 9:30 a.m.

3. A normal work day shall not be scheduled on a Saturday or Sunday.

4. Each employee shall have a half-hour eating period midway through the employee’s normal work day.

5. The employer shall file the work schedule with the Director at least seven days before it becomes effective.

6. The employer shall post the work schedule at least seven days before it becomes effective, and shall keep it posted while the work schedule is in effect. The work schedule shall be posted in a conspicuous place or places in the workplace where it is most likely to come to the attention of the employees to whom it relates. O. Reg. 291/01, s. 8.

Work schedule requirements, two shifts

9. The employer’s work schedule may provide for two shifts subject to the following:

1. The employer shall file the work schedule with the Director at least 15 days before it becomes effective instead of as paragraph 5 of section 8 requires.

2. An employee shall be scheduled to work only the earlier shift or the later shift and shall not be required to change shifts unless the employee or the employee’s agent agrees.

3. An employee who works on the later shift shall be paid at least 5 per cent more than the employee would be paid if the employee worked the earlier shift.

4. If immediately before the work schedule becomes effective the employer only had one shift,

i. the work schedule shall not result in an employee who was working in that single shift working less than a normal work day or working fewer normal work days, and

ii. an employee who was employed immediately before the work schedule became effective shall not be scheduled to work the later shift unless the employee or the employee’s bargaining agent agrees. O. Reg. 291/01, s. 9.

Normal work day if no work schedule

10. (1) If section 7 does not apply, the normal work day for an employee begins at 8:00 a.m. on each of Monday to Friday, with an unpaid half-hour eating period midway through the working day and two paid 10-minute breaks, one before and one after the eating period. O. Reg. 291/01, s. 10 (1).

(2) This section does not apply with respect to employees who are homeworkers. O. Reg. 291/01, s. 10 (2).

Special rate work

11. (1) An employer shall not require or allow an employee who is not a homeworker to perform work,

(a) in excess of 8 hours, including paid breaks but not including eating periods, on any of Monday to Friday; or

(b) on Saturday or Sunday. O. Reg. 291/01, s. 11 (1).

(2) An employer shall not require or allow an employee who is a homeworker to perform work in excess of 40 hours in a week, determined on the basis of the period from midnight on Saturday to midnight on the following Saturday. O. Reg. 291/01, s. 11 (2).

(3) Subsections (1) and (2) apply instead of subsection 17 (1) of the Act. O. Reg. 291/01, s. 11 (3).

(4) Subsection 17 (2) of the Act applies, but shall be read as if the words “in excess of an amount set out in subsection (1)” were struck out and “in excess of an amount set out in subsection 11 (1) or (2) of Ontario Regulation 291/01 (Terms and Conditions of Employment in Defined Industries)” substituted. O. Reg. 291/01, s. 11 (4).

Breaks relating to special rate work after normal work day

12. (1) Despite section 20 of the Act, before an employee performs more than two hours of special rate work after the end of a normal work day, the employer shall give the employee a paid 15-minute break. O. Reg. 291/01, s. 12 (1).

(2) The break under subsection (1) shall be paid at the special rate determined under section 14. O. Reg. 291/01, s. 12 (2).

(3) If an employee performs more than five hours of special rate work on a Saturday or Sunday, the employer shall permit the employee a half-hour eating period so that the employee does not work more than five consecutive hours without an eating period. O. Reg. 291/01, s. 12 (3).

(4) This section does not apply with respect to employees who are homeworkers. O. Reg. 291/01, s. 12 (4).

Pay for special rate work

13. Despite Part VIII of the Act, the employer shall pay an employee the special rate determined under section 14 for all special rate work. O. Reg. 291/01, s. 13.

Special rate

14. (1) The special rate is an hourly rate for all employees, even for those employees who are not normally paid on an hourly basis. O. Reg. 291/01, s. 14 (1).

(2) The special rate is one and one-half times the following:

1. For an employee who is not paid on a piece-work basis, the hourly average of the wages paid to him or her during the most recent pay period in which the employee worked normal work days before the pay period in which he or she performed special rate work.

2. For an employee who is paid on a piece-work basis, the hourly average of the wages paid to him or her,

i. during the months from July to December in the previous year, in the case of special rate work performed during the months from January to June, and

ii. during the months from January to June in the same year, in the case of special rate work performed during the months from July to December. O. Reg. 291/01, s. 14 (2).

(3) The special rate for an employee who is a homeworker shall be determined under paragraph 2 of subsection (2) whether or not the employee is paid on a piece-work basis. O. Reg. 291/01, s. 14 (3).

(4) The following shall not be considered in determining an employee’s special rate under subsection (1):

1. Pay at the special rate.

2. Vacation pay and year-end vacation payments.

3. Industry holiday pay under subsection 18 (3).

4. Termination pay and severance pay.

5. Entitlements under a provision of the employment contract that, under subsection 5 (2) of the Act, prevails over Part VIII, X, XI or XV of the Act. O. Reg. 291/01, s. 14 (4).

Vacation

15. (1) Despite Part XI of the Act, the employer shall give a vacation of two weeks to an employee upon the completion of each 12-month period of employment, whether or not the employment was active employment. O. Reg. 291/01, s. 15 (1).

(2) The employer shall determine the period when an employee may take the vacation to which he or she is entitled under subsection (1), which may be a two-week period or two periods of one week each, but in any case the employee shall be given the vacation not later than 10 months after the end of the 12-month period for which it is given. O. Reg. 291/01, s. 15 (2).

(3) A week of vacation is calculated on the basis of the period from midnight on Saturday to midnight on the following Saturday. O. Reg. 291/01, s. 15 (3).

Vacation pay

16. (1) Despite Part XI of the Act, the employer shall pay an employee vacation pay for the employee’s vacation. O. Reg. 291/01, s. 16 (1).

(2) An employee’s vacation pay shall be equal to 4 per cent of all wages, not including vacation pay or any year-end vacation payment, earned by the employee during the period for which the vacation is given. O. Reg. 291/01, s. 16 (2).

Year-end vacation payment

17. (1) Despite Part XI of the Act, the employer shall pay an employee, in addition to vacation pay under section 16, a year-end vacation payment in accordance with this section. O. Reg. 291/01, s. 17 (1).

(2) An employee who has been employed by an employer for at least three continuous months is entitled to a year-end vacation payment equal to 2 per cent of all wages, excluding vacation pay, earned during the year to which the year-end vacation payment applies. O. Reg. 291/01, s. 17 (2).

(3) For the purpose of this section, the year to which a year-end vacation payment applies shall be,

(a) the 12-month period established for the purpose by the practice of the employer; or

(b) if the employer has not established such a year, the 12-month period beginning on December 1 in a year and ending on November 30 in the following year. O. Reg. 291/01, s. 17 (3).

(4) Subject to subsection (5), the employer shall pay the year-end vacation payment no later than six weeks after the end of the year to which it applies. O. Reg. 291/01, s. 17 (4).

(5) If the employment of the employee is terminated in a year, the employer shall pay the year-end vacation payment for that year no later than seven days after the termination. O. Reg. 291/01, s. 17 (5).

Industry holiday pay

18. (1) Despite Part X of the Act, the employer shall pay an employee for each industry holiday, unless,

(a) the employee has been employed by the employer for less than three months; or

(b) the employee was scheduled to work on the first normal work day either before or after the industry holiday and the employee failed to work that day as scheduled. O. Reg. 291/01, s. 18 (1).

(2) The amount the employer shall pay an employee for an industry holiday is,

(a) if the employee is not paid on a piece-work basis, the average of the wages paid for the days the employee works during the two-month period before the industry holiday; and

(b) if the employee is paid on a piece-work basis, the hourly average of the wages paid,

(i) for the days the employee works during the months from July to December in the previous year, in the case of an industry holiday that falls in the months from January to June, and

(ii) for the days the employee works during the months from January to June in the same year, in the case of an industry holiday that falls in the months from July to December. O. Reg. 291/01, s. 18 (2).

(3) The industry holiday pay for an employee who is a homeworker shall be determined under clause (2) (b) whether or not the employee is paid on a piece-work basis. O. Reg. 291/01, s. 18 (3).

(4) The following shall not be considered in determining the amount of an employee’s industry holiday pay:

1. Pay at the special rate.

2. Vacation pay and year-end vacation payments.

3. Industry holiday pay under subsection (3).

4. Termination pay and severance pay.

5. Entitlements under a provision of the employment contract that, under subsection 5 (2) of the Act, prevails over Part VIII, X, XI or XV of the Act. O. Reg. 291/01, s. 18 (4).

Special rules for Victoria Day and Canada Day

19. (1) Despite Part X of the Act and section 5, an employer may require an employee to work a normal work day on Victoria Day or Canada Day if the employee or the employee’s agent agrees and the holiday does not fall on a Saturday or Sunday. O. Reg. 291/01, s. 19 (1).

(2) The normal work day that the employer may require an employee to work under subsection (1) is the normal work day that would have applied if the day were not Victoria Day or Canada Day. O. Reg. 291/01, s. 19 (2).

(3) Subject to subsection (4), if an employee works a normal work day on Victoria Day or Canada Day, the following apply:

1. The employer shall pay the employee industry holiday pay under section 18 if the employee is entitled to industry holiday pay.

2. The employer shall pay the employee the special rate determined under section 14 for the work on the holiday. O. Reg. 291/01, s. 19 (3).

(4) If an employee works a normal work day on Victoria Day or Canada Day, the employer may, if the employee or the employee’s agent agrees, substitute a normal work day for the industry holiday and the following apply:

1. The industry holiday shall be deemed to be a normal work day.

2. The substituted normal work day shall be deemed to be the industry holiday.

3. The substituted normal work day shall be before the employee’s next paid vacation day. O. Reg. 291/01, s. 19 (4).

(5) If an employee is required to work a normal work day on Victoria Day or Canada Day but fails, without reasonable cause, to report for work, the employee is not entitled to industry holiday pay under section 18. O. Reg. 291/01, s. 19 (5).

Industry review committee

20. (1) The Minister may establish a committee to advise the Minister on matters related to employment standards within the Ontario garment manufacturing industry. O. Reg. 291/01, s. 20 (1).

(2) The committee shall be composed of a chair, and as many members equal in number representative of employers and employees respectively as the Minister considers proper, all of whom shall be appointed by the Minister. O. Reg. 291/01, s. 20 (2).

(3) The members of the committee shall be appointed for a term not exceeding one year and are eligible for reappointment. O. Reg. 291/01, s. 20 (3).

(4) The Minister may fill a vacancy in the membership of the committee by appointing a person to fill the unexpired term. O. Reg. 291/01, s. 20 (4).

21. Omitted (revokes other Regulations). O. Reg. 291/01, s. 21.

22. Omitted (provides for coming into force of provisions of this Regulation). O. Reg. 291/01, s. 22.