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8. Women's Clothing and Fur Industry Employees (Garment Workers)
(a) Overview
The "women's clothing and fur industries" [hereafter "women's clothing"] sector aka "garment workers") is, without a doubt amongst Ontario industrial sectors, subject to the heaviest modification of the standard ESA regime.
There are two main subdivisions of the women's clothing sector, as defined at these links [Reg 291/01, s.1 defns]: Terminology Note:
What I call the "women's clothing" sector is, for regulation purposes, referred to as the "defined industries" [the term may arise in quotes from the regulation used below] [Reg 291/01, s.1 defns]. The women's clothing industry is subject to special rules with respect to many existing ESA topics, as well as entirely new categories (as set out below) of regulation not applied in any other Ontario employment sectors, as follows:- minimum wage;
- hours of work limits;
- overtime;
- holidays;
- work schedules (new)
- vacation;
- industrial review committee (new).
While most of these are fairly straightforward, I have had considerable difficulty in trying to clarify the special women's clothing worker rules respecting "hours of work limits" and "hour-extending agreements". I am still not satified with my understanding of these issues, and point to what are IMHO incoherent provisions in Reg 291/01 as the cause of this. I note this problem prominently below when the topics arise.
Further, much of the regulation over women's clothing workers is itself exempted for "homeworkers", who are - simply - people that work out of their homes [ESA s.1(1) defns]. The potential for abuse of garment workers is exacerbated by the fact that they generally are recent immigrant women, a class particularly susceptible to economic exploitation.
(b) Minimum Wage
. Overview
Standard ESA minimum wage rules are explained in Ch.3, s.2(c). With the below-noted "four-hour minimum" exception, they apply generally to women's clothing workers.
Note as well that 'homeworkers' - who are often women's clothing workers - are subject to a slightly increased minimum wage rate (110% of the General minimum wage rate) [see the charts at Ch.3, s.2(c)].
. Four-Hour Minimum
Under standard minimum wage rules, where an employee shows up for work as required - and if they regularly work at least three hours in a day - they shall be deemed to have worked three hours for minimum wage calculation purposes, even if they worked less than that [Reg 285/01, s.5(7)].
For women's clothing employees, this rule is modified so that any reporting for work (regardless of their regular shift) where four hours or less is worked (even none), shall be deemed to be four hours' work done (ie. a four-hour minimum)
[Reg 291/01, s.3(1)].
Note however that this modified rule does not apply to homeworkers [Reg 291/01, s.3(2)], who are subject to the 'standard' three-hour rule noted above.
(c) Off-Work Intervals
Standard ESA daily and weekly "off-work interval" rules [ESA s.18,19] [see Ch.4, s.3(g)] (roughly: 'days free from work') do not apply to the women's clothing industry [Reg 291/01, s.4].
Note however that work between midnight and 6am of any day is prohibited [Reg 291/01, s.5(2)].
(d) Eating Periods
Standard ESA eating periods rules [ESA s.20,21] [see Ch.4, s.3(i)] do not apply to the women's clothing industry [Reg 291/01, s.4].
However note the unpaid eating period requirement once a women's clothing employee is into five hours "special rate" time on weekends [see (e): "The Special Rate", below].
(e) Hours of Work Limits, Hour-Extending Agreements and "Special Rate Work" (Overtime)
. Overview
Standard ESA "hours of work limits" rules are explained in Ch.4, s.3. They include sub-topics such as maximum hours per day and week, hour-extending agreements between the parties with (weekly) and without (daily) ES Director approval, off-work intervals and eating periods.
It is already noted (above) that women's clothing workers are exempted from the off-work and eating period provisions. As will be seen below, the balance of the "hours of work limit" rules in the women's clothing industry are also heavily modified.
. Understanding the Standard Rules
In order to understand the treatment of "hours of work limits" in the women's clothing industry, I think it important to be familiar with the "standard" ESA rules on this topic that apply to most other employees.
Standard ESA daily and weekly "hours of work limits" are explained in Ch.4, s.3(b,c). Roughly, and subject to exceptions and modifications, they limit daily work to the greater of the established regular day or 8 hours, and weekly work to 48 hours. Both of these limits are subject to "hour-extending agreements" between the parties. Hour-extending agreements that extend the weekly limit (but not the daily limit) also require approval of the ES Director.
Further, under the standard rules, the "hours of work" limits are bear no relationship to premium overtime pay, which is determined by the separate "overtime threshold" (the standard is 44 hours per week). This is different for women's clothing workers, for whom the payment of premium "special rate work" IS directly related to exceeding of the hours of work limits.
. Key Concepts
Key to understanding the treatment of hours of work limits for women's clothing employees, and their relationship to "special rate work" (ie. overtime), are the following concepts:- Normal work day limit
An employee's normal work day shall not exceed 8 hours, which includes paid breaks but excludes eating periods. Saturday and Sunday are not normal work days for this purpose [Reg 291/01, s.6(1,2)].
Note that the scheduling (ie. precise times) of a "normal work day" for non-homeworker women's clothing workers is governed by rules explained below [(g) "Normal Work Day Work Schedules (for non-homeworkers)".
- Normal work week limit
An employee's normal work week shall not exceed 40 hours, which includes paid breaks but excludes eating periods. For these purposes a week counts from midnight Saturday [Reg 291/01, s.6(3,4)].
- Special Rate Work
Except where hour-extending agreements (below) exist, and except in the case of homeworkers, work in excess of a "normal work day" limit (above) - and work on Saturday or Sunday - is prohibited [Reg 291/01, s.11(1)(4)].
For homeworkers, and again subject to hour-extending agreements (below), work beyond the "normal work week" limit is prohibited, but this can include work on a Saturday and/or a Sunday [Reg 291/01, s.11(2)(4)].
Any work beyond these two limits, as authorized by hour-extending agreements, is "special rate work" time [Reg 291/01, s.1 defns].
Note however that work between midnight and 6am of any day is absolutely prohibited, even if an hour-extending agreement is in place [Reg 291/01, s.5(2)].
- Piecework
"Piecework" means "payment based on the number of articles or things that are manufactured, prepared, improved, repaired, altered, assembled or completed" [Reg
291/01, s.1 defns].
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Hour-Extending Agreements: An Interpretation Problem?
* Caution *
I have had great difficulty interpreting the provisions of Reg 291/01 and the ESA as they relate to the issue of hour-extending agreements in the women's clothing industry and how they might circumvent the limits of the "normal work day" and "normal work week" (above). Key parts of the Regulation appear to have been issued in error. I have tried to state my hesitation where it occurs below. Readers however are cautioned that any conclusions below are uncertain. I have tried to locate case and OLRB law on these issues without success.
I invite any knowledgeable persons to assist in clarifying these issues. - simonshields@isp.com |
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Under standard ESA provisions, "hours of work limits" may be exceeded if the parties agree, and if proper "hour-extending" agreements are put into place [see Ch.4, s.3(d)].
While there is an obvious attempt in Reg 291/01 [the women's clothing industry Regulation] to insert its' concepts of the "normal work day" and "normal work week" (above) into the ESA's hour-extending agreement provisions, IMHO this has been done in a very awkward and perhaps fatally flawed manner. This problem pivots around Reg s.291/01, s.11(4) and ESA s.17(2), quoted here for reference: Reg 291/01
s.11(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. The cited Act provision, to be amended, reads: ESA s.17(2)
An employee's hours of work may exceed the limit set out in clause (1)(a) if the employee has made an agreement with the employer that he or she will work up to a specified number of hours in a day in excess of the limit and his or her hours of work in a day do not exceed the number specified in the agreement. It is plain that the text targeted for replacement in ESA s.17(2) does not actually occur in it. This leaves us in the position of hypothesizing the true intent behind the provisions, an unenviable statutory interpretation position.
Taking it as settled that any work done under an hour-extending agreement is subject to "special rate" premium pay (below), my concerns revolve around what hours of work and other prohibitions persist even within properly executed "hour-extending agreements". The ESA website does not address this issue (only referring us to the raw text of Reg 291/01), and I have found no case law on it.
I, at least, am left with uncertainty as to the following issues as they apply to the women's clothing industry - which I state below along with my 'best present legal conclusions:- Can hour-extending agreements apply to extend both "normal work days" and "normal work weeks" - and if so, by how many hours?
While we have significant confusion respecting the interpretation of the modified ESA s.17(2), there is nowhere in Reg 291/01 an exclusion of the application of ESA s.17 in its entirety [indeed Reg 291/01, s.4 expressly excludes ESA ss.18-21, but is silent wrt s.17].
Therefore s.17(3), which allows hour-extending agreements wrt weekly "hours of work limits" can still potentially apply [note that under s.17(3) Director-approval for such weekly hour-extending agreements is required, but not for daily hour-extending agreements]. However s.11(3) of the Reg eliminates the ESA s.17(1) reference to which it is supposed to apply (replacing it with a Saturday/Sunday reference that makes no sense). Therefore I conclude that hour-extending agreements wrt "normal work weeks" are not legally authorized, at least under ESA s.17(3).
That leaves the possibility that the Reg s.11(4) amendments have somehow expanded the scope of ESA s.17(2) [which on its unmodified face applies only the extend daily "hours of work" limits] to both "normal" work days and weeks - in the process shedding the requirement of Director approval set out for week hour-extending agreements in ESA s.17(3).
While this is an interpretation more consistent with the obvious intent of Reg s.11 as a whole, by removing any element of Director-approval for hour-extending agreements, it appears to place women's clothing workers entirely without external assistance in resisting unconscionable hour-extending agreements.
As to 'how many more' hours an hour-extending agreement can legitimize, we have to look to the balance of ESA s.17: ie. under the 'standard' rules. Sadly, these rules are silent on this issue, and it appear to again leave an already highly vulnerable class of worker open to greater exploitation.
- Can hour-extending agreements apply to allow work on Saturdays and Sundays?
The answer to this appears to be "yes". While Reg 291/01, s.6(2) prohibits Saturdays and Sundays from being normal work days, ss.5(1,2) specifically address what limits exist under hour-extending agreements. By excluding some work (eg. between midnight and 6am, and industry holidays) from the range of hour-extending agreements, but remaining silent on Saturdays and Sunday work, it by implication allows weekend work under such greements.
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. The "Special Rate"
Regardless of whether the employee is paid hourly (most will be paid by piecework), any work beyond the daily (for non-homeworkers) and weekly (for homeworkers) limit, is paid hourly at the "special rate work" [Reg 291/01, s.14(1)].
The "special rate" is calculated as 1.5x whichever of the following are applicable [Reg 291/01, s.14(2,3)]:- For Piece-workers and Homeworkers
It is the average hourly rate paid in the calendar half-year before the work done, taken in January-June and July-December blocks. Essentially, the average hourly rate paid over each of these previous six-month blocks should periodically re-calculated for this purpose.
Note that it is the legal obligation of employers to record hours worked, even for piece-workers and homeworkers [see Ch.3, s.8(a)].
- For Others (eg. hourly-paid non-homeworker workers)
It is the average hourly rate for the most recent past pay period in which "normal" work days were worked (subject to the below exclusions). Note the length of a pay period is established by workplace practice [ESA s.11(1)].
The "averaging" above (for all categories) is done on the "normal" work time only, such that the following forms of pay are excluded from the averaging calculation [Reg 291/01, s.14(4)]:- special rate pay;
- vacation pay;
- "industry holiday pay" (see below);
- termination pay;
- severance pay; and
- any greater contractual wage rate entitlement above ESA minimum standards, for any of the above.
. Breaks and Eating Periods
Employees working into "special rate time" are entitled to a 15-minute, paid (at the "special rate"), break within the first two hours of special rate work starts [Reg 291/01, s.12(1,2)].
Similarly, employees - except homeworkers - working into "special rate time" are entitled to an unpaid 30-minute eating period within the first five hours of special rate work done on a Saturday or Sunday [Reg 291/01, s.12(3,4)].
(f) Holidays
Overview
An entirely separate "industry holiday" regime is put in place for women's clothing employees, ousting the "public holiday" provisions normally applicable to Ontario employees [Reg 291/01, s.18(1)].
For these purposes, "industry holidays" include [Reg 291/01, s.1 defns]:- New Year's Day,
- Family Day [3rd Monday in February]
- Good Friday,
- Victoria Day,
- Canada Day,
- Labour Day,
- Thanksgiving Day,
- Christmas Day, and
- Boxing Day (being December 26 or the Monday next following when Christmas falls on a Saturday)
. Work on Industry Holidays Prohibited
Subject to special rules for Victoria Day and Canada Day (below), working on an "industry holiday" (above) is prohibited for women's industry workers, despite any hour-extending or other agreements [Reg 291/01, s.5]. This is in contrast to sometimes complex holiday 'shifting' and substitution rules that apply to other Ontario employees with respect to "public holidays" [see Ch.3, s.3] [although some of those rules apply to Victoria Day and Canada Day work (see below)].
Note as well that work between midnight and 6am of any day is prohibited [Reg 291/01, s.5(2)].
. Paid Time-Off for Industry Holidays; Exceptions
Generally, "industry holidays" are paid time-off holidays.
The exceptions to paid time-off for industry holidays are for [Reg 291/01, s.18(1)]:- for probationary employees (less than three months);
and
- "front-loading" and "back-loading" of holiday time off.
For the purposes of women's clothing industry, this is where an employee does not work all of his or her scheduled day of work before the industry holiday ("front-loading") or all of his or her scheduled day of work after the industry holiday ("back-loading").
. "Industry Holiday" Pay Rate
The "industry holiday" pay rate is calculated as whichever of the following are applicable [Reg 291/01, s.18(2,3)]:- For Piece-workers and Homeworkers
It is the average hourly rate paid in the calendar half-year before the work done, taken in January-June and July-December blocks. Essentially, the average hourly rate paid over each such successive six-month period should constantly re-calculated for this purpose.
Note that it is the legal obligation of employers to record hours worked, even for piece-workers and homeworkers [see Ch.3, s.8(a)].
- For Others (eg. hourly-paid non-homeworkers)
It is the average hourly rate for the two months prior to the industry holiday (subject to the below exclusions).
The "averaging" above (for all categories) is done on the "normal" work time only, such that the following forms of pay are excluded from the averaging calculation [Reg 291/01, s.18(4)]:- special rate pay;
- vacation pay;
- "industry holiday pay" itself;
- termination pay;
- severance pay; and
- any greater contractual wage rate entitlement above ESA minimum standards, for any of the above.
. Special rules for Victoria Day and Canada Day
Unless a Victoria Day or a Canada Day also fall on a Saturday or Sunday, they may be worked by a women's clothing employee if they (or their union) consent. However such work cannot exceed the "normal work day" (8 hours) [Reg 291/01, s.19(1)].
If such a holiday is worked, then the employee is entitled to either A or B below[Reg 291/01, s.19(3,4)]: A.
The "industry holiday" pay rate (see above) for the industry holiday [unless they are excluded from receiving this normally: ie. probationary employees or through "front" or "back-loading" of time off]
AND
the "special rate" [as per (e) above: "special rate"] for the time actually worked (together, roughly 2.5x time in total);
OR, alternatively:
B.
If the employer and the employee (or their union) consent, they may treat the worked holiday as a normal work day (paid at the normal wage) - and then "shift" the holiday to another normal work day, taking that day off with holiday. Note that failure, without reasonable cause, to report for work as scheduled on a Victoria Day or a Canada Day voids the employee's entitlement to industry holiday pay for that day [Reg 291/01, s.19(5)].
(g) "Normal Work Day" Work Schedules (for Non-Homeworkers)
. Overview
As noted above [(e)], the "normal work day" may not exceed 8 hours, including paid breaks but not including eating periods. Further Saturday and Sunday may not be "normal work days".
The "women's clothing" industry - unlike any other industrial sector - is subject to special rules respecting the scheduling of a "normal work day" - that is: the precise hours worked by any individual employee (note that the rules do not apply to homeworkers).
If a "work schedule" is properly prepared and distributed in accordance with these special rules, then the employer has some flexibility in work scheduling, as set out below [Reg 291/01, s.7].
Otherwise, where there is no "work schedule" prepared in accordance with the below rules, the scheduling for a "normal work day" begins at 8am Monday through 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". This rule does not apply to homeworkers [Reg 291/01, s.10].
The special "work schedule" rules fall into two categories: one workplace shift (a day shift) and two workplace shifts (day and evening shifts).
. Single Workplace Shift
A single-shift work schedule that complies with the following rules has the legal effect of modifying the 8am Monday-Friday start time, above [Reg 291/01, s.8]:- it shall set out the starting time of the normal work day for all employees, which shall not be after 9:30am;
- it shall not provide for any scheduled work on a Saturday or Sunday;
- it shall provide for a half-hour eating period midway through the employee's shift;
- the employer shall post it in the workplace "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.", AND file it with the ES Director at least seven days before it becomes effective. It shall remain posted during the period that it is in effect.
. Two Workplace Shifts
A two-shift work schedule that complies with the following rules, has the legal effect of modifying the 8am Monday-Friday start time [Reg 291/01, s.9]:- it shall set out the starting time of the normal work day for all employees (for both shifts);
- it shall not provide for any scheduled work on a Saturday or Sunday;
- it shall provide for a half-hour eating period midway through the employee's shift;
- the employer shall post it in the workplace "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.", and file it with the ES Director at least 15 days before it becomes effective. It shall remain posted during the period that it is in effect;
- individual employees shall be scheduled for either the earlier or the later shift, without any later change unless they or their union consent;
- employees on the later shift are entitled to at least five percent more wages than those in the earlier shift;
- the first two-shift work schedule after changing from a single-shift work schedule, shall not result in either:
- an employee working less than a normal work day or working fewer normal work days, or
- being scheduled to work the later shift unless the employee or the employee's union agrees.
Note that work between midnight and 6am is prohibited, even under an hour-extending agreement [Reg 291/01, s.5(1,2)].
(h) Vacations
. Overview
Standard ESA vacation rules are set out in Ch.3, s.4. For women's clothing employees, those rules are subject to minor variations as set out here.
. Timing of Vacation
Employees are entitled to two weeks paid vacation after every 12 month period of employment is completed, to be taken within 10 months from that point. This right acrrues regardless of whether the employee was on leave or otherwise not engaged in active employment [Reg 291/01, s.15(1,2)].
As is the situation under the standard rules (ie. "vacation entitlement years" and "alternative vacation entitlement years"), the employer may establish the dates which define the eligibility year. If however they fail to do so it will default to 01 December to 30 November each year [Reg 291/01, s.17(3)].
The employer has the right to designate the timing of the vacation, and may set it as either two continuous weeks off work, or two separate one-week periods [Reg 291/01, s.15(2)]. A week of vacation counts from midnight Saturday to midnight Sunday following [Reg 191/01, s.15(4)].
. Vacation Pay
Vacation pay, to be allocated as wages during the vacation period, is four percent of all wages (apparently including "special rate work") that the employee earned in the 12-month eligibility period [Reg 291/01, s.16] (however this total excludes vacation pay paid in the eligibility year).
. Additional, Year-End Vacation Pay Entitlement
Unlike employees from other industry sectors, women's clothing workers are entitled to - in addition to regular vacation pay paid during vacation time (above) - a lump sum "year-end vacation payment" of half (two percent of the eligibility period wages) of the vacation pay explained above (this amounts to a one week's pay bonus) [Reg 291/01, s.17(1,2)].
This payment is due within six weeks after the end of the eligibility year [Reg 291/01, s.17(4)], unless the employment is terminated before that, in which case it is due within seven days of the termination [Reg 291/01, s.17(5)].
Employees whose work terminates before their probationary period (three months) is over are excluded from this benefit entirely [Reg 291/01, s.17(2)].
(i) Industry Review Committee
Buried at the end of the women's clothing regulation [Reg 291/01, s.20] is authority for the Minister of Labour to establish a committee 'to advise the Minister on matters related to employment standards within the Ontario garment manufacturing industry." In addition to the Chair, the committee should have equal representation from employers and employees.
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