R.R.O. 1990, Reg. 325: GENERAL

under Employment Standards Act, R.S.O. 1990, c. E.14

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revoked or spent September 4, 2001

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Employment Standards Act

REGULATION 325

Amended to O. Reg. 292/01

GENERAL

Note: This Regulation was revoked on the day Parts I to XXVII of the Employment Standards Act, 2000 come into force. This day has been named as September 4, 2001. See: O. Reg. 292/01, ss. 1, 3.

This is the English version of a bilingual regulation.

Interpretation

1. (1) In this Regulation,

“construction” includes all work in and about the construction, erection, demolition, repair, remodelling, decoration or alteration of the whole or any part of a building or structure, the laying of pipe and conduit above or below ground level, excavating, tunnelling, fencing, grading, paving, land clearing, bridging and street and highway building, but does not include work done by a person who is regularly employed by a manufacturing, industrial or service institution performing maintenance work on the premises of the person’s employer; (“construction”)

“domestic servant” means a person who is employed by a householder,

(a) as a sitter to attend primarily to the needs of a child who is a member of the household,

(b) as a companion to attend to the needs of an aged, infirm or ill member of the household, or

“hotel, motel, tourist resort, restaurant and tavern” means every establishment furnishing for payment accommodation, lodging, meals or beverages, and includes hotels, motels, motor hotels, tourist homes, tourist camps, tourist cabins and cottages, tourist inns, catering establishments and all other establishments of a similar nature; (“hôtel, motel, lieu de villégiature, restaurant et taverne”)

“lodging” means the provision of a room and three meals per day for a seven-day week; (“pension”)

“road building” means the preparation, construction, reconstruction, repair, alteration, remodelling, renovation, demolition, finishing and maintenance of streets, highways or parking lots, including structures such as bridges, tunnels or retaining walls in connection with streets or highways, and all foundations, installation of equipment, appurtenances and work incidental thereto; (“construction de routes”)

“room” means a room that is reasonably furnished and reasonably fit for human habitation, is supplied with clean bed linen and towels and is reasonably accessible to proper toilet and wash-basin facilities; (“chambre”)

“seasonal employee” means an employee who works not more than sixteen weeks in a calendar year for an employer; (“employé saisonnier”)

“taxi cab” means a vehicle, with seating accommodation for not more than nine persons exclusive of the driver, used for the carriage for hire of persons. (“taxi”) R.R.O. 1990, Reg. 325, s. 1 (1).

(2) This Regulation, except for subsection 2 (2), clause 11 (1) (c), subsection 11 (2) and section 14, does not apply to a domestic, nanny or sitter to whom Regulation 322 of the Revised Regulations of Ontario, 1990 applies. R.R.O. 1990, Reg. 325, s. 1 (2).

Application of Act

2. (1) The Act does not apply to,

(a) a secondary school student who performs work under a work experience program authorized by the school board of the school in which the student is enrolled;

(b) a person who performs work under a program approved by a community college or university;

(b.1) a participant in community participation under the Ontario Works Act, 1997;

(c) an inmate of a correctional institution who participates inside or outside the institution in a work project or rehabilitation program authorized under the Ministry of Correctional Services Act; or

(d) an offender who performs work or services under an order or sentence of a court. R.R.O. 1990, Reg. 325, s. 2 (1); O. Reg. 384/96, s. 1; O. Reg. 133/98, s. 1.

(2) Where, under an agreement or arrangement between an employee and the employer approved by the Director, a period of two or more work weeks is the period in which the hours of work of an employee may be averaged for the purpose of determining the hours of work in each work week in the period,

(a) section 17 of the Act does not apply; and

(b) subsection 24 (1) of the Act does not apply to the hours of work in a work week where such averaged hours do not exceed forty-four. R.R.O. 1990, Reg. 325, s. 2 (2).

Exemptions from Parts IV to VIII of Act

3. (1) Parts IV, V, VI, VII and VIII of the Act do not apply to a person employed,

(a) as a duly qualified practitioner of,

(i) architecture,

(ii) chiropody,

(iii) dentistry,

(iv) law,

(v) medicine,

(vi) optometry,

(vii) pharmacy,

(viii) professional engineering,

(ix) psychology,

(x) public accounting,

(xi) surveying, or

(xii) veterinary science;

(b) as a duly registered drugless practitioner;

(d) as a student in training for the professions or callings mentioned in clause (a), (b) or (c);

(e) in commercial fishing;

(f) as a domestic servant;

(g) as a registered salesperson of a broker registered under the Real Estate and Business Brokers Act;

(h) as a salesperson, other than a route salesperson, who is entitled to receive all or any part of his or her remuneration as commissions in respect of offers to purchase or sales of goods, wares, merchandise or services and which offers or sales are normally made at a place other than the place of business of the employer; or

(i) on a farm whose employment is directly related to the primary production of eggs, milk, grain, seeds, fruit, vegetables, maple products, honey, tobacco, pigs, cattle, sheep and poultry. R.R.O. 1990, Reg. 325, s. 3 (1).

(2) Despite subsection (1), Part V of the Act applies to a person described in clause (c) of the definition of “domestic servant” in subsection 1 (1) if that person does not reside in the residence of the householder. R.R.O. 1990, Reg. 325, s. 3 (2).

Exemptions from Part IV of Act

hours of work

4. Part IV, except section 22, of the Act does not apply to a person employed,

(a) as a full-time firefighter as defined in the Fire Departments Act;

(b) whose only work is supervisory or managerial in character;

(d) to work in construction;

(e) in,

(i) landscape gardening,

(ii) mushroom growing,

(iii) the growing of flowers for the retail and wholesale trade,

(iv) the growing, transporting and laying of sod,

(v) the growing of trees and shrubs for the wholesale and retail trade,

(vi) the breeding and boarding of horses on a farm, or

(vii) the keeping of fur-bearing animals, as defined in the Fur Farms Act, for propagation or the production of pelts for commercial purposes;

(f) Revoked: O. Reg. 423/94, s. 1.

(g) as a superintendent, janitor or caretaker of a residential building and who resides in the building; or

(h) as an embalmer or funeral director. R.R.O. 1990, Reg. 325, s. 4; O. Reg. 423/94, s. 1.

Exemptions from Part V of Act

minimum wages

5. Part V of the Act does not apply to a person employed,

(a) as a student in a recreational program operated by a charitable organization registered as a charitable organization in Canada under Part I of the Income Tax Act (Canada), where the work or duties of the student are directly connected with the recreational program;

(b) as a student to instruct or supervise children;

(d) as a superintendent, janitor or caretaker of a residential building who resides in the building;

(e) as a trainee in a course leading to registration as a registered nursing assistant under the Health Disciplines Act;

(f) as a trainee in a course of study for a laboratory technologist as required by the Canadian Society of Laboratory Technologists; or

(g) as a trainee in a course of study for a radiological technician as required by the Canadian Association of Medical Radiation Technologists. R.R.O. 1990, Reg. 325, s. 5.

Exemptions from Part VI of Act

overtime pay

6. Part VI of the Act does not apply to a person employed,

(a) as a full-time firefighter as defined in the Fire Departments Act;

(b) whose only work is supervisory or managerial in character;

(d) in,

(i) landscape gardening,

(ii) mushroom growing,

(iii) the growing of flowers for the retail and wholesale trade,

(iv) the growing, transporting and laying of sod,

(v) the growing of trees and shrubs for the retail and wholesale trade,

(vi) the breeding and boarding of horses on a farm, or

(vii) the keeping of fur-bearing animals, as defined in the Fur Farms Act, for propagation or the production of pelts for commercial purposes;

(e) Revoked: O. Reg. 423/94, s. 2.

(f) as a student to instruct or supervise children;

(g) as a student at a camp for children;

(h) as a student in a recreational program operated by a charitable organization registered as a charitable organization in Canada under Part I of the Income Tax Act (Canada), where the work or duties of the student are directly connected with the recreational program;

(i) as a superintendent, janitor or caretaker of a residential building and who resides in the building;

(j) as a taxi cab driver; or

(k) as an ambulance driver, ambulance driver’s helper or first-aid attendant on an ambulance. R.R.O. 1990, Reg. 325, s. 6; O. Reg. 423/94, s. 2.

Exemptions from Part VII of Act

public holidays

7. (1) Part VII of the Act does not apply to a person employed,

(a) as a full-time firefighter as defined in the Fire Departments Act;

(b) as a fishing or hunting guide;

(i) landscape gardening,

(ii) mushroom growing,

(iii) the growing of flowers for the retail and wholesale trade,

(iv) the growing, transporting and laying of sod,

(v) the growing of trees and shrubs for the retail and wholesale trade,

(vi) the breeding and boarding of horses on a farm, or

(vii) the keeping of fur-bearing animals, as defined in the Fur Farms Act, for propagation or the production of pelts for commercial purposes;

(d) Revoked: O. Reg. 423/94, s. 3.

(e) as a student to instruct or supervise children;

(f) as a student at a camp for children;

(g) as a student in a recreational program operated by a charitable organization registered as a charitable organization in Canada under Part I of the Income Tax Act (Canada), where the work or duties of the student are directly connected with the recreational program;

(h) as a superintendent, janitor or caretaker of a residential building and who resides in the building;

(i) as a taxi cab driver; or

(j) as a seasonal employee in a hotel, motel, tourist resort, restaurant or tavern who is provided with room and board. R.R.O. 1990, Reg. 325, s. 7 (1); O. Reg. 423/94, s. 3.

(2) An employee who works in construction and receives 7 per cent or more of the employee’s hourly rate or wages for vacation pay or holiday pay is exempt from Part VII of the Act. R.R.O. 1990, Reg. 325, s. 7 (2).

substituted day

(3) Where an employer, with the agreement of an employee to whom section 25 of the Act does not apply, substitutes or designates a day for a public holiday, the day so substituted or designated shall be the public holiday for the purposes of section 26 of the Act. R.R.O. 1990, Reg. 325, s. 7 (3).

Exemptions from Part VIII of Act

vacation pay

8. Part VIII of the Act does not apply to a person employed,

(a) as a trainee in a course leading to registration as a registered nursing assistant under the Health Disciplines Act;

(b) as a trainee in a course of study for a laboratory technologist as required by the Canadian Society of Laboratory Technologists; or

(c) as a trainee in a course of study for a radiological technician as required by the Canadian Association of Medical Radiation Technologists. R.R.O. 1990, Reg. 325, s. 8.

Exemptions from Part XIII of Act

9. Part XIII of the Act, except sections 50 and 51, does not apply to an employee in a retail business establishment in which the primary retail business is one,

(a) that sells prepared meals;

(b) that rents living accommodations;

(d) that sells goods or services incidental to a business described in clauses (a) to (c) and that is located in the same premises as the business. R.R.O. 1990, Reg. 325, s. 9.

Minimum Wage Established

10. (1) For the work week in which January 1, 1995 occurs and thereafter, an employer shall pay not less than the following minimum wage:

1. To an employee who is a student under 18 years of age, if the weekly hours of the student are not in excess of 28 hours or if the student is employed during a school holiday, $6.40 an hour.

2. To an employee who, as a regular part of his or her employment, serves liquor directly to customers, guests, members or patrons in premises for which a licence or permit has been issued under the Liquor Licence Act, $5.95 an hour.

3. For the services of a hunting or fishing guide, $34.25 for less than five consecutive hours in a day and $68.50 for five or more hours in a day whether or not the hours are consecutive.

3.1 To an employee who is a homeworker, 110 per cent of the amount set out in paragraph 4.

4. To an employee other than one to whom paragraph 1, 2, 3 or 3.1 applies, $6.85 an hour. O. Reg. 770/94, s. 1 (1).

(1.1) If the calculation under paragraph 3.1 of subsection (1) results in an hourly minimum wage that is an amount ending in a fraction of a cent, the hourly minimum wage shall be rounded up to the nearest cent. O. Reg. 423/94, s. 4 (3).

(1.2) If an employee falls within both paragraphs 1 and 3.1 of subsection (1), the employer shall pay the employee not less than the minimum wage set out in paragraph 3.1. O. Reg. 423/94, s. 4 (3).

(2) For the week in which January 1, 1995 occurs and thereafter, if meals or room or both are taken into account by an employer in calculating the minimum wage of an employee, the maximum amount at which meals or room or both shall be valued for the purposes of determining if the minimum wage has been paid to the person is as follows:

1.	Room	$31.70 a week if the room is private and $15.85 a week if the room is not private.
2.	Meals	$2.55 a meal and not more than $53.55 a week.
3.	Both room and meals	$85.25 a week if the room is private and $69.40 a week if the room is not private.

O. Reg. 770/94, s. 1 (2).

(3) Charges for meals or room shall not be deducted from the minimum wages of an employee unless the employee has received the meals or occupied the room supplied. R.R.O. 1990, Reg. 325, s. 10 (3).

(4) Where an employee who is not a student,

(a) regularly works more than three hours a day;

(b) is required to present himself or herself for work; and

the employee shall be deemed to have worked for three hours for the purpose of determining whether the employee has been paid the minimum wages prescribed under the Act. R.R.O. 1990, Reg. 325, s. 10 (4).

(5) Subsection (4) does not apply where the employer is unable to provide work for the employee because of fire, lightning, power failure, storms or similar causes beyond the control of the employer resulting in the stopping of work. R.R.O. 1990, Reg. 325, s. 10 (5).

Regular Rate or Regular Wages

11. (1) Subject to the definition of “regular rate” in section 1 and to section 5 of the Act, in determining the regular wages of an employee whose hours of work differ from day to day or who is paid on a basis other than time, the employee’s regular wages for a public holiday or a day that is substituted or designated for the public holiday for the purposes of Part VII of the Act shall be determined by,

(a) the method set out in a schedule declared in force under the Industrial Standards Act, if the schedule applies to the employee;

(b) the method agreed upon under or pursuant to a collective agreement that is binding upon the employer and the employee; and

(c) in a case where clause (a) or (b) does not apply, calculating the average of the employee’s daily earnings, exclusive of overtime pay, over a period of thirteen work weeks preceding the public holiday or the day that is substituted or designated for the public holiday. R.R.O. 1990, Reg. 325, s. 11 (1).

(2) Subject to the definition of “regular rate” in section 1 of the Act, in determining the regular rate or regular wages of an employee whose hours of work differ from day to day or who is paid on a basis other than time, for the purposes of Part XIV of the Act, the wages of the employee for a regular non-overtime work week shall be determined by calculating the average of the employee’s weekly earnings, exclusive of overtime pay, for the weeks the employee has worked in the period of thirteen work weeks preceding the date the employee would have been entitled to receive notice of termination. R.R.O. 1990, Reg. 325, s. 11 (2).

12. (1) Subject to subsection (2), work shall be deemed to be performed by an employee for the employer,

(a) where work is,

(i) permitted or suffered to be done by the employer, or

(ii) in fact performed by an employee although a term of the contract of employment expressly forbids or limits hours of work or requires the employer to authorize hours of work in advance;

(b) where the employee is not performing work and is required to remain at the place of employment,

(i) waiting or holding himself or herself ready for call to work, or

(ii) on a rest or break-time other than an eating period. R.R.O. 1990, Reg. 325, s. 12 (1).

(2) Work shall not be deemed to be performed for an employer during the time the employee,

(a) is entitled to,

(i) take time off work for an eating period,

(ii) take at least six hours or such longer period as is established by contract, custom or practice for sleeping and the employer furnishes sleeping facilities, or

(iii) take time off work in order to engage in the employee’s own private affairs or pursuits as is established by contract, custom or practice; or

(b) is not at the place of employment and is waiting or holding himself or herself ready for call to work. R.R.O. 1990, Reg. 325, s. 12 (2).

Homemakers

13. (1) In this section,

“homemaker” means a person who is employed by a person other than a householder to perform homemaking services for a householder or member of a household in the private residence of the householder. R.R.O. 1990, Reg. 325, s. 13 (1).

(2) Despite section 12, the hour of work in respect of which a homemaker is to be paid at least the minimum wage shall be not more than twelve hours in a day. R.R.O. 1990, Reg. 325, s. 13 (2).

(3) Subclause 11 (1) (a) (iii) of the Act and Parts IV and VI of the Act do not apply to a homemaker who is paid in accordance with subsection (2). R.R.O. 1990, Reg. 325, s. 13 (3).

Homeworkers

13.1 (1) The employer of a homeworker shall advise the homeworker in writing of the type of work that he or she is being employed to perform, and,

(a) if the homeworker is to be remunerated according to the number of hours he or she works, the amount to be paid for an hour of work in a regular non-overtime work week;

(b) if the homeworker is to be remunerated according to the number of articles or things he or she manufactures, the amount to be paid for each article or thing manufactured in a regular non-overtime work week; or

(c) if the homeworker is to be remunerated on some basis other than that described in clauses (a) or (b), the basis on which he or she is to be remunerated. O. Reg. 423/94, s. 5.

(2) If the employer of a homeworker who is paid according to the number of articles or things he or she manufactures requires the manufacture of a certain number of articles or things to be completed by a certain date or time, the employer shall advise the homeworker in writing of the number and the date or time. O. Reg. 423/94, s. 5.

(3) In this section,

“manufacture” includes preparation, improvement, repair, alteration, assembly or completion. O. Reg. 423/94, s. 5.

Deductions, Etcetera, from Wages

14. (1) Despite section 8 of the Act, an employer may set off against, deduct from, claim or make a claim against or retain or accept the wages of an employee where,

(a) a statute so provides;

(b) an order or judgment of a court so requires; or

(c) subject to subsection (2), a written authorization of the employee so permits or directs. R.R.O. 1990, Reg. 325, s. 14 (1).

(2) No written authorization of an employee shall entitle an employer to set off against, deduct from, retain, claim or accept wages for faulty workmanship, or for cash shortages or loss of property of the employer where a person other than the employee has access to the cash or property. R.R.O. 1990, Reg. 325, s. 14 (2).

(3) Where an employee has been given or paid a vacation with pay or payment for vacation in excess of the requirements of Part VIII of the Act, no employer shall set off or deduct such excess against or from any vacation with pay, pay for vacation, or payment under section 30 of the Act. R.R.O. 1990, Reg. 325, s. 14 (3).

Road Building

15. (1) Despite Part VI of the Act, and subject to subsection (2),

(a) an employee engaged at the site of road building in relation to streets, highways or parking lots shall be paid overtime pay by the employer for each hour worked in excess of fifty-five hours in a work week at an amount not less than one and one-half times the employee’s regular rate; and

(b) an employee engaged at the site of road building in relation to structures such as bridges, tunnels or retaining walls in connection with streets or highways shall be paid overtime pay by the employer for each hour worked in excess of fifty hours in a work week at an amount not less than one and one-half times the employee’s regular rate. R.R.O. 1990, Reg. 325, s. 15 (1).

(2) Where the hours of work in the case of,

(a) an employee within clause (1) (a) are less than fifty-five hours in a work week; or

(b) an employee within clause (1) (b) are less than fifty hours in a work week,

the difference up to an amount not exceeding twenty-two hours between the hours of work in the work week and fifty-five hours or fifty hours, as the case may be, may be added to the maximum hours prescribed by clause (1) (a) or (b) for the purpose of determining the overtime pay of the employee in the immediately following calendar week. R.R.O. 1990, Reg. 325, s. 15 (2).

Special Overtime Provisions

hotel, motel, etcetera

16. (1) Despite Part VI of the Act, an employee who works for the owner or operator of a hotel, motel, tourist resort, restaurant or tavern for twenty-four weeks or less in a calendar year and who is provided with room and board shall be paid overtime pay by the employer for each hour worked in excess of fifty hours in a work week at an amount not less than one and one-half times the employee’s regular rate. R.R.O. 1990, Reg. 325, s. 16 (1).

fresh fruits and vegetables processing

(2) Despite Part VI of the Act, a seasonal employee whose employment is directly related to the canning, processing and packing of fresh fruits or vegetables or the distribution thereof by the canner, processor or packer shall be paid overtime pay by the employer for each hour worked in excess of fifty hours in a work week at an amount not less than one and one-half times the employee’s regular rate. R.R.O. 1990, Reg. 325, s. 16 (2).

sewer and watermain construction

(3) Despite Part VI of the Act, an employee who is employed in laying, altering, repairing or maintaining sewers and watermains and work incidental thereto or in guarding the site during the laying, altering, repairing or maintaining of sewers and watermains shall be paid overtime pay by the employer for each hour worked in excess of fifty hours in a work week at an amount not less than one and one-half times the employee’s regular rate. R.R.O. 1990, Reg. 325, s. 16 (3).

Local Cartage

17. (1) Despite Part VI of the Act, an employer shall pay to an employee who is a driver of a vehicle or who is a driver’s helper overtime pay for each hour worked in excess of fifty hours in a work week at an amount not less than one and one-half times the employee’s regular rate. R.R.O. 1990, Reg. 325, s. 17 (1).

(2) Subsection (1) applies to employees who are drivers of vehicles used in the business of carrying goods for hire within a municipality or to any point not more than five kilometres beyond the municipality’s limits and to employees who are drivers’ helpers on such vehicles. R.R.O. 1990, Reg. 325, s. 17 (2).

Highway Transport

18. (1) Despite Part VI of the Act, an employer shall pay to an employee who is a driver of a public truck overtime pay for each hour worked in excess of sixty hours in a work week at an amount not less than one and one-half times the employee’s regular rate. R.R.O. 1990, Reg. 325, s. 18 (1).

(2) Subsection (1) applies to employees who are drivers of public trucks that are operated by holders of operating licences issued under the Truck Transportation Act. R.R.O. 1990, Reg. 325, s. 18 (2).

(3) Subsection (1) does not apply to employees who are drivers of vehicles used in the business of carrying goods for hire within a municipality or to any point not more than five kilometres beyond the municipality’s limits. R.R.O. 1990, Reg. 325, s. 18 (3).

(4) For purposes of this section, in computing the number of hours worked by an employee in a week, only those hours during which the employee is directly responsible for the public truck shall be included. R.R.O. 1990, Reg. 325, s. 18 (4).

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R.R.O. 1990, Reg. 325: GENERAL

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