Observation (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 1) sur la durée du travail (industrie), 1919 - Canada (Ratification: 1935)

Articles 2, 5 and 6(1)(b) of the Convention. Limits for daily and weekly hours of work – Federal legislation. Further to its previous comment in which the Committee expressed concern at the many discrepancies between the national legislation and the provisions of the Convention, the Committee notes the Government’s statement that the Convention is not on the list of up-to-date ILO Conventions and that workplaces, production methods and workforce demographics have changed significantly since the Convention was adopted in 1919. In the Government’s view, the ILO should therefore consider tripartite discussions with respect to updating this instrument. The Government recognizes that there is a continuing need to regulate hours of work but considers that balancing employers’ needs for flexibility and employees’ needs for work-life balance requires some flexibility in the regulation of hours of work. In this connection, the Committee wishes to recall paragraph 328 of its 2005 General Survey on hours of work in which it concluded that Convention No. 1 warranted revision but noted that it did not have a mandate to make concrete proposals to this end. It also wishes to draw the Government’s attention to paragraph 332 of the same document in which the Committee suggested, among other elements to be taken into account if a decision were to be taken to consider revision, the need to ensure that the new instrument does not result in a reduction of the level of protection currently afforded by existing instruments.

Further to its previous comments with respect to the ongoing review of Part III of the Canada Labour Code, the Committee notes (i) the report authored by Professor Harry W. Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century (the Arthurs’ report), published in October 2006 by the Federal Labour Standards Review Commission setting out the Commission’s recommendations for legislative changes and (ii) the resulting Discussion Paper on the Review of Labour Standards in the Canada Labour Code, published in February 2009, framing discussions with interested organizations and individuals based on those recommendations. The Committee further notes the comments of the Canadian Labour Congress (CLC) in response to the recommendations set out in the Arthurs’ report and the discussion paper by the Human Resources and Skills Development Canada (HRSDC) dated July 2009. The Government indicates that, in addition to the above material, consultations were held with a wide range of stakeholders on the potential modernization of Part III, and that 63 written submissions were received. It further indicates that it is currently considering the results of the written submissions and stakeholder consultations before deciding on a course of action. The Committee hopes that in the ongoing review process of Part III of the Canada Labour Code based on the recommendations of the Arthurs’ report and the ensuing consultations with stakeholders, the Government will not fail to take into consideration the various issues the Committtee has been raising for several years. The Committee requests the Government to keep the Office informed of any further developments in this regard and to transmit copies of any new texts once they have been finalized.

Provincial legislation – Alberta. The Committee notes that section 21(b) of the Employment Standards Code provides that overtime provisions apply to an employee’s hours of work in excess of 44 hours in the work week, but observes once more that the Code does not set an overall limit for weekly hours.

Prince Edward Island. The Committee notes the Government’s indication that industries such as heavy equipment and seasonal highway construction, industrial sandblasting, fish processing, trucking and peat moss industry are altogether exempted from the standard work week of 48 hours and recalls that such general exceptions do not meet the conditions of any of the permissible exceptions under the Convention.

Nova Scotia. The Committee notes the Government’s explanations that the absence of limits for daily or weekly hours is due to the fact that employees in low-paid jobs needed to work additional hours in order to earn a decent living. The Government adds that following recent increases in the minimum wage, the need for minimum wage earners to work overtime will be reduced and a comprehensive review of the Labour Standards Code is expected to address these issues over the next couple of years. The Committee is obliged to note, however, that at present the general labour legislation fails to give effect to basic requirements of the Convention.

Newfoundland and Labrador. The Committee notes the Government’s indication that the standard work week is 40 hours, and not 48 hours, but recalls that there is no other limitation on working hours than the minimum eight-hour daily rest.

Fixing limits to daily and weekly hours of work. The Committee once again draws the Government’s attention to the provincial legislation which fails to implement the requirement of Article 2 of the Convention, i.e., that the standard working hours are to be limited to eight a day and 48 a week. More concretely, (i) the Employment Standards Act of New Brunswick sets no limit either on daily or on weekly hours of work; (ii) the Employment Standards Act of Prince Edward Island does not regulate daily working hours; (iii) the Employment Standards Code of Manitoba sets a standard working day of eight hours, allowing to fix a different limit by collective agreement, regulation or by permission of the Employment Standards Director; (iv) the legislation of Ontario allows to set by collective agreement a working day of up to 13 hours and, subject to administrative authorization, a working week in excess of 60 hours; and (v) the legislation of Nova Scotia sets standard working time at 110 hours over a two-week period in the construction sector.

Compressed work week. The Committee once again draws the Government’s attention to the fact that Article 2(b) of the Convention allows weekly hours of work to be spread unevenly, i.e., in a compressed working week, but only if the length of the working day does not exceed nine hours. In this respect, the Committee again notes that the Employment Standards Code of Alberta permits recourse to a compressed work week which allows a working day of up to 12 hours. It also notes that the Labour Standards Act of Nunavut permits work days of up to ten hours.

Averaging of hours of work. The Committee refers once again to Article 5 of the Convention which allows averaging of work hours only in exceptional cases where it is recognized that the normal limit of eight hours a day and 48 hours a week cannot be applied, and observes that the legislation of Alberta and Manitoba authorize averaging with no restriction and that working time arrangements of this kind are also allowed by the relevant legislation of Quebec, Saskatchewan and British Columbia and Nunavut.

Overtime. The Committee recalls that in Nova Scotia, Quebec and Saskatchewan, overtime seems to be authorized under any circumstances provided that hours worked are paid at a higher rate whereas Articles 3 and 6(1)(b) of the Convention permit temporary exceptions to normal hours of work only in very limited and well-circumscribed cases.

In light of the foregoing analysis, the Committee asks the Government to take the necessary measures to ensure the conformity of law and practice with the provisions of the Convention both at the federal and the provincial level.

Finally, the Committee draws the Government’s attention to the conclusions of the ILO Tripartite Meeting of Experts on Working Time Arrangements, held in October 2011, according to which the provisions of existing ILO standards relating to daily and weekly hours of work, weekly rest, paid annual leave, part time and night work, remain relevant in the twenty-first century, and should be promoted in order to facilitate decent work. The Experts also emphasized the importance of working time, its regulation, and organization and management, to: (a) workers and their health and well-being, including opportunities for balancing working and non-work time; (b) the productivity and competitiveness of enterprises; and (c) effective responses to economic and labour market crises.